Vicarious Liability Flashcards
Test for vicarious liability
- was the person alleged to commit the Tory at employee?
. generally there is no liability for the Tory committed by an independent contractor who is legally responsible for their own actions - did the employee commit the alleged Tort “during the cause of their employment “
If the answer is yes to both of theese questions then the defendant may be able to sue both the employer and employee.
Old test
- a contract of service - an employee
- a contract for serves - and independent contractor = pay them for a service
Key case for old test
Yewens v Noakes 1880
Yewens v Noakes 1880
Legal principle - sets out the control test as a way of defending an employee
Gives a definition of an employee however it has been updated since. Definition = person who is subject to the command of his master as to the manner in which he should do his work
Performing rights society v Mitchell and Booker 1924
The nature and degree of control can determine an employee.
Control test doenst work in more Morden society
Why is the control test not used anymore
Nowadays employees are more skilled and professional and the size and the complexity of buissnesses has increased
The control test has therefore become less effective and when the right to control has been changed to actual control, it is no longer possible to draw the correct distinctions by only using a single test. The control test is also said to be unsuitable for employees who are highly skilled, therefore other tests have emerged.
Elements of control test
Employer
- Power to sleeves the servant
- the right to control the method of working
- the right to suspend and dismiss
- payment of wages
In most modern cases it can be impossible to use this test, however it can still be used in cases involving borrowed workers. - are they employees or the company. Or the company borrowed them
Mersey docks and harbour board v coffin and griffths (Liverpool) Ltd (1947)
Legal principle - the control test can be used when employees are borrowed
Hawley v luminar leisure 2006
Legal principle - control test can be used for bouncers opeferating outside premesies
Viasystem (Tyneside) Ltd v Thermal Transfer. (Northern) Ltd 2005
Claimants contracted with D1 to install air conditioning in their factory. Legal principle - two employers can be responsible for an employers negligence subcontracted
Viasystem (Tyneside) Ltd v Thermal Transfer. (Northern) Ltd 2005
Claimants contracted with D1 to install air conditioning in their factory. D1 subcontracted some work to D2. D2 agreed with D3 to provide fitters no the fitters mate on a labour only basis. S the fitters mate damaged some ducting that came in contacted with a sprinkler which split causing a flood.
Has to be decided between D1 and D2 who was liable was vicariously liable for for S negligence.
Autgoority was Mersey docks nd harbour board which held the control test can be used when employees are borrowed.
There was a long standing assumption not a legalnpriviple that a finding of dual vicarious liability was impossible. However D2 and D3 were both liable their responsibility was equal so they had to pay 50 percent of the Claim.
Legal principle - two employers can be responsible for an employers negligence subcontracted
The integration or organisation test
- established in Stevenson Jordan and Harrison Ltd v macdonald and Evans 1952 by Lord denning
A worker will be an employee if they are fully integrated into the business
If their work is only as accessory they will not be classed as an employee
This still has problems for example teachers who are examiners will have a contract and will pay tax and national insurance but the contact specifies they are not employees
Stevenson Jordan and Harrison Ltd v macdonlad and Evan’s 1952 by Lord denning.
Established in the integration or organisation test
- a worker will be an employee id they are fully integrated into the buissness
- if their work is only as accessory they will not be classed an an employee
- has problem s for example teachers who are examiners will have a contract and pay tax and national insurance but there contract will state they are not enmployees
This test is commonly used what is it
The economic reality or multiple test
What is the economic reality or multiple test
- courts have recognised that a single test may be confusing and not give just results
The economic reality test provides answers based on several aspects that indacide employment or self employment
Esbakished in ready mixed converter (South east ) Ltd v Minisiter of pensions and national insurance 1968
ready mixed converter (South east ) Ltd v Minisiter of pensions and national insurance 1968
Held the economic reality test probed answer based on servers aspects that indicate employment or self employmmet p. Also sets out the economic reality test or the multiple test
Case involved whether a car a company has given if it was in a accident who would be liable the company or the driver. McKenna developed test which set three conditions which has to be met before an employment relationship was identified
1. Employee agrees to provide work and skill in return for a wage
2. The employee wpexpressly or impliedly accepts that the work wik be subject to the Carroll of the employer
3. all of the considerations in the contract are consistent with there being a contract of employment rather than any other relationship,
Taking these tests into account, reg result was the drivers was not employees
An updated test
The test now includes several factors that can be considered and weighted according to their significance.
These might include
. The ownership of any tools or plant used in the work - means probably mkt an employee
. The method of payment (monthly or on completion of the work)
. The payment of tax and national insurance by the employer -
. If there is a job description
. Any independence in doing the job - not an employee
