Vicarious Liability

Question 1

To establish VL against an employer what 3 things must a claimant show?

Answer 1

-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

Question 2

What is vicarious liability?

Answer 2

When the law makes one person liable for a tort committed by another

Question 3

What two types of torts are there?

Answer 3

Non intentional tort - negligence
Intentional tort - criminal offences

Question 4

Name three cases involving non intentional torts and what the tort was:

Answer 4

-Limpus v London General Omnibus - negligence
-Century Insurance v Northern Ireland Transport Board - negligence
-Rose v Plenty - negligence

Question 5

What happened in Limpus v London General Omnibus and Century Insurance v Northern Ireland Transport board?

Answer 5

-driving in a manner explicitly told not to do (employer still liable)
-blowing up a petrol’s station due to the employee’s stupidity

Question 6

Name a case involving intentional torts and what the tort was:

Answer 6

-Poland v Parr - trespass to the person
-Mattis v Pollock - trespass to the person
-Lister v Hesley -trespass to the person

Question 7

What was the concern in Mattis v Pollock and Lister v Hesley?

Answer 7

-non-fatal offences (gbh)
-sexual offences

Question 8

What is the definition of an employee?

Answer 8

An employee works under a contract OF service

Question 9

What is the definition of an independent contractor?

Answer 9

An independent contractor works under a contract FOR services

Question 10

What are the three traditional tests for establishing that the tortfeasor is an employee?

Answer 10

-Control test
-Integration test
-Economic reality test

Question 11

What is the control test? and what two cases was this test illustrated in?

Answer 11

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

Question 12

What is the integrated test? and give a case which illustrated this:

Answer 12

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

Question 13

What is the economic reality test ?

Answer 13

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.

Question 14

What factors might a court look at when weighing up the factors in the economic reality test?

Answer 14

-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

Question 15

What do you do if the conventional/traditional tests are not appropriate?

Answer 15

You look to see if the role is one akin to employment.

Question 16

In which case was the akin to employment approached addressed in?

Answer 16

The Catholic Child welfare Society and others v Various Claimants and The Institute of the Brothers of the Christian Schools and others

Question 17

What are the 5 factors taken into account when addressing ‘akin to employment’ ?

Answer 17

-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

Question 18

What are the facts of Armes v Nottinghamshire County Council?

Answer 18

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

Question 19

What test is used for non-intentional torts committed in the course of employment? Explain:

Answer 19

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

Question 20

What 2 issues must be looked at when using the Salmond test?

Answer 20

-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

Question 21

What 3 circumstances are where a non-intentional tort falls within the course of employment? Give a case for each:

Answer 21

-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)

Question 22

What 3 circumstances are when non-intentional tort doesn’t fall within the course of employment? Give a case for each:

Answer 22

-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)

Question 23

What new test came from the Bazley v Curry case in Canada?

Answer 23

The close connection test

Question 24

What question is asked when applying the close connection test?

Answer 24

Whether the wardens torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable

Question 25

What do the courts have to do when applying the close connection test?

Answer 25

Establish a ‘close connection’ between what the employee was employed to do and the employee’s conduct

Question 26

What are the 2 stages of the close connection test?

Answer 26

-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?

Question 27

Name two cases use the close connection test:

Answer 27

-Lister v Hesley Hall Ltd
-Mohamud v WM Morrisons Supermarkets
-Mattis v Pollock