Vicarious Liability Flashcards
1
Q
What is the purpose of vicarious liability?
A
- This imposes the liability of the tort of someone who did not commit the tort but should be held responsible
2
Q
What is the definition of vicarious liability?
A
- Where a third party has legal responsibility for the unlawful actions of another
3
Q
What is the history of vicarious liability?
A
- Based on the idea that an employer had control over an employee
- However this is harder in modern work methods that has less control for example less trained managers and working from home
- However this leads to it being criticised as unfair as it holds a party liable for something they have not done
4
Q
Why is vicarious liability needed?
A
- The employer should be responsible for tort carried out under the instructions of the employer. They are responsible for hiring, firing and disciplining staff therefore forcing them to select appropriate staff and deal with poor behaviour
- They need to ensure that the employee is trained properly so work and procedures are carried out safely and they should take responsibility if it is not
- They should also be responsible for supervising the employee
5
Q
What is the test for vicarious liability?
A
- Was the person alleged to have committed the tort an employee?
- Did the employee commit the alleged tort during the course of their employment
6
Q
Can employees be liable for independent contractors?
A
- There is no liability for the tort committed by an independent contractor as they are legally responsible for their own actions
7
Q
What is the old test for testing whether they were an employee?
A
- A contract of service which is an employee
- A contract for services which is an independent contractor
8
Q
What are elements of the control test?
A
- Established by Lord Thankerton in Short v J W Henderson Ltd
- Power to select a servant
- Payment of wages
- Right to control the method of working
- Right to suspend and dismiss
- This can be used for borrowed workers
9
Q
How is control defined?
A
- An employee is a person who is subject to the command of his master in which he shall do his work
- Established in Yewens v Noakes
10
Q
What is the Integration/Organisation test?
A
- Established in Stevenson Jordan and Harrison v Macdonald and Evans
- A worker will be an employee if they are fully integrated into the business
- If they only work as an accessory, they will not be an employee
11
Q
What is the economic reality test?
A
- Three conditions had to be met before an employment relationship is identified
- This indicates whether it is employment or self-employment
- Established in Ready Mixed Concrete Ltd
1. Employee agrees to provide work and skill in return for a wage
2. Employee expressly or impliedly accepts that the work will be subject to the control of the employer
3. Considerations in the contract are consistent with their being a contract of employment rather than other relationships
12
Q
What is an updated test?
A
- Includes several factors that can be considered such as
1. Ownership of any tools
2. Method of payment which is between monthly or on completion of work
3. Payment of tax and national insurance by the employer
4. If there is a job description
5. Independence in doing their job
13
Q
What are recent developments to decide if they are an employee?
A
- If they claimed historic abuse
- If they did not have a traditional employment relationship
14
Q
What elements were established in E v English Province?
A
- A relationship akin to employment (Similar to employment and not of independent contractor)
- Establish by a connection between a defendant and employer which was sufficiently close
- Fair and just to impose liability
15
Q
What is the two part test in The Catholic Child Welfare Society?
A
- Was the relationship between the institute and it’s members were capable of giving rise to vicarious liability
- Was the alleged sexual abuse connected to that relationship which allowed rise to vicarious liability
16
Q
What did Lord Toulson say?
A
- The court must consider two matters which is firstly what was the nature of the employee’s job and then decide if there was a sufficient connection between that position and the wrongful conduct do make it right for the employer to be held liable
17
Q
Does the employee need to be acting in the course of their employment?
A
- The employee needs to be acting in the course of their employment for the employer to be liable for their actions
- There is vicarious liability if the employee is acting in the course of their employment
- There is no vicarious liability if they are not acting in the course of their employment
18
Q
Can the employer be liable if they are acting against orders?
A
- If the employee is doing their job but acts against orders in the way they do it, the employer can still be liable
- However, if it is not part of their job, they can remove liability
19
Q
What happens if the employee commits a criminal act?
A
- If the employee commits a criminal act during their work, the employer may be liable to the victim if there was a close connection between the crime and what the employee was meant to do
20
Q
What happens if the employee commits a negligent act?
A
- An employer can be liable for any poor actions of their employee that leads to harm to another
- This encourages employers to take care when selecting the employees and therefore provide sufficient training and supervision.
- This ensures employers have a social responsibility of training the employee
- However this is harder due to modern working methods of working from home
21
Q
What happens if the employee is acting on a frolic of their own?
A
- If the employee causes injury or damage to another whilst doing something outside the area of their work, they will be seen acting on a frolic of their own therefore the employer will not be liable
22
Q
What is the remedy for vicarious liability?
A
- The employee may be ordered to pay compensation however they may not be able to
- If the employer is liable, they can be ordered to pay compensation
- Seen in Civil Liability Act 1978, compensation can be deducted from wages
23
Q
What are other areas of vicarious liability?
A
- Parents liable for the behaviour of their children
- Prisons liable for the behaviour of inmates
- Churches can be liable for the behaviour of members
