vicarious liability Flashcards
what is vicarious liability
places a strict, no fault, liability in certain situations on an employer for their employees wrongdoing has they control them and therefore responsible for them.
Tortfeasor, man of straw meaning the employer has the means to compensate C because they have insurance.
how to prove vicarious liability-rules
rule 1- based on Salmond test, considering traditional employee relationships
rule 2- established in the case of lister v Hesley hall, which deals with modern working relationships that are akin to employment.
step one- was a tort committed
a non-intentional tort- employee must have committed a negligent act that caused cs injuries
an intentional tort- employer can also be liable for an employees criminal act/omission
step 2- was the tortfeasor an employee
the tortfeasor must be an employee and not an independent contractor, this rule covers traditional working relationships such as teachers.
what are traditional tests?
-control test
-inyegration test
-economic reality test
what is the control test-employee
this is the oldest test.
looks at whether the employer has sufficient control over the employee.
case example- Yemen v Noakes- who is in control of the employee
what is the economic reality test- employee
test looks at a range of factors.
concrete- independent contractor, owned own lorry and could send another driver in their place.
employees are -paid hourly salary
-uses employees materials and equipment
- employer determines work performed
-typically works for one employer
independent contractor
- works for multiple clients
- temporary relationships
-contractor and client agree project scope
what is the integration test-employee
this test looks at whether the employees work is fully integrated into the business or not.
fully integrated- into the business, contract of service= employee
accessory to- the business- contract for service= independent contractor
workers role can be split- some parts are fully integrated/ other aspects are deemed an accessory.
other factors
employees do not need a contract of employment or be paid a wage
- if they finished a shift and are not working at time, will generally not be considered an employee.
-can have 2 employers
step 3- was the tortfeasor an employee
the tortfeasor must be an employee and not an independent contractor, but this rule looks at unusual working relationships such as work experience.
akin to employment test- unusual
they may not traditionally be an employee but are doing something akin to what an employee would do.
christian brothers case- lord Phillips set out a 5 step criteria, making it fair, just and reasonable to find a relationship akin to employment.
-means to compensate
-act must relate to activity carried out by employee
-activity was integral part of eomplyers business
-activity created a risk of tort
-tortfeasor under control of employer
case example- Barclays
step 3- in the course of employment (salmon rule)
for an employer to be vicariously liable an employee must commit the tort in the course of employment . this applies to non-intentional torts only.
in the course of employment- liable
authorised acts- Poland, c injured when pushed by employee off of wagon because thought he was stealing. D liable, within his duty to protect his employees
authorised act done in a prohibited or negligent way- limps, injured when bus driver caused accident due to speeding. d liable as bus driver was doing his authorised job in a negligent way.
traveling for work= in the course of employment
not in the course of employment= not liable
outside the scope of employment- beard, c injured by ticket conductor when they were driving. D liable as tortfeasor wasn’t supposed to be liable.
-frolic of their own, Hilton, c injured when employee negligently caused an accident when taking an unauthorised break. d not liable
travelling to work- not in the course of employment
step 4 closely connected (lister rule)
rule applies to intentional torts only, for employer to be vicariously liable tort must be closely connected to their employment.
what is the two part test for the lister rule
-what was the nature of the tortfeasors job
-was there a sufficient connection between the tortfeasor employment and their wrong doing.
criminal acts closely connected to employment
cases
lister v hesley- boarding house for disabled children, abused
mohamud v Morrison- c injured by sale assistant who assaulted them afer they asked a question. d liable
criminal acts not closely connected to employment
Morrison v various claimants- cs personal data was leaved with intention
-jehovahs witness v BXB- c was raped by church elder after conducting door to door visits.
