Vicarious Liability

Question 1

Test for vicarious liability

Answer 1

• 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.

Question 2

Old test

Answer 2

• a contract of service - an employee
• a contract for serves - and independent contractor = pay them for a service

Question 3

Key case for old test

Answer 3

Yewens v Noakes 1880

Question 4

Yewens v Noakes 1880

Answer 4

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

Question 6

Performing rights society v Mitchell and Booker 1924

Answer 6

The nature and degree of control can determine an employee.

Control test doenst work in more Morden society

Question 7

Why is the control test not used anymore

Answer 7

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.

Question 8

Elements of control test
Employer

Answer 8

• 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

Question 9

Mersey docks and harbour board v coffin and griffths (Liverpool) Ltd (1947)

Answer 9

Legal principle - the control test can be used when employees are borrowed

Question 10

Hawley v luminar leisure 2006

Answer 10

Legal principle - control test can be used for bouncers opeferating outside premesies

Question 11

Viasystem (Tyneside) Ltd v Thermal Transfer. (Northern) Ltd 2005

Answer 11

Claimants contracted with D1 to install air conditioning in their factory. Legal principle - two employers can be responsible for an employers negligence subcontracted

Question 12

Viasystem (Tyneside) Ltd v Thermal Transfer. (Northern) Ltd 2005

Answer 12

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

Question 13

The integration or organisation test

Answer 13

• 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

Question 14

Stevenson Jordan and Harrison Ltd v macdonlad and Evan’s 1952 by Lord denning.

Answer 14

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

Question 15

This test is commonly used what is it

Answer 15

The economic reality or multiple test

Question 16

What is the economic reality or multiple test

Answer 16

• 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

Question 17

ready mixed converter (South east ) Ltd v Minisiter of pensions and national insurance 1968

Answer 17

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

Question 18

An updated test

Answer 18

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

Question 19

carmichael v national power 2001

Question 20

recent developments

Answer 20

some recent cases have tested in the person commiting the tort is an meployee

these often did not involve traditional employmnet relationships

they alos often involve claims of jhistorical abuse

E v English province of our lady of charity 2012

Question 21

E v English province of our lady of charity 2012

Answer 21

question was whether a nun and a visiting priest were employees and whether the Bishop of the place would be vicarious liable for sexual assault

court of appeal states was required to look for
1. a relationship akin to employment
2. which was estba;ished by a connection between a putative defendnat and a actor which was sufficiently close so that
3. it was fair and just to impose liability on the d

applying such tests, the majority of the court decided that the priest was more like an employee than an independent contractor. as his relationship with the bishop was close enough and similar to that of employer/employee it made it just and fair to impose vicarious liability

jGE v Trustee of the portsmouth Roman Catholic Diocesan Trust 2012

Question 22

tests to rmwmebr

Answer 22

alock

multriplae test

Question 23

jGE v Trustee of the portsmouth Roman Catholic Diocesan Trust 2012

Answer 23

d was raped and abused by a roman catholic priest while living in cchildrens care home. brought the cation against the church for the acts of the priest. the church argues that they were not liable as the priest was not an employee.

held - even though the priest was not an employee of the church, his relationship with the church was sufficiently close to one of employment so it was fair and ust to jhole the church vicariously liable for damages as a result of his conduct

Question 24

the catholic child welfate society v vaarious cliamants (FC) and the inmstitute of the brothers of the christian schools 2012

Answer 24

170 men alleged they were sexually abused physically aswell by their teachers while living at school for boys in need of care. the teachers were members of the Brothers of Christian Schools (the intsitue)

school argues the intitute hsould be liable not the school. hpwver instute argued school hied them.

court examineas chools claim agsint the instiution under the two part test

1. whether the relationship between the institution and its memebers were capable of giving rise to the vicarious libility and
2. whether the alleged acts of sexual abuse were connected to that relationship in such way as to give rise to vicarious liability

court held the first elemnt of vicarious liability can be based on a relationship that, while not arising under a formal contractr or employment is suffiecntly ‘ akin to that between an employer and an empoyee’. the court examined the institutes relationship with its memebers was sufficiently close to one of employmnet based on the heirachal structore of the intsute to direct where its members taught, the importance of teaching activity in the orgnaisations misionm and the manner which its memebrs were boyund by its rules.
second elemnet was asloasatisfied based on the clsoe connections betweeen the institutios relatuionship with its members,a n dthe allegegd secual abuse its memebers commited while pursing their misison to provide education to vunerable students living on teh prememsies

as a result teh pcurt deceids that th institute shoukd be responbsbile for teh acts of its memebers even though they were meployees of teh school..

Question 25

using three part test

Answer 25

Mohammed v VM Morrisons Supoermarket PLC 2016 a man employed at the d petrol sttaion assaulted a customer cuaing him seriousinjuries. teh supreme court considered the job that had been given to teh rmployee and whether there was sufficient connectiosn between the meployees job and what he didi to teh customer. they decuided that it wa sthe employee was actiong within the field of his employmnet - it was work and within wokring hours and tehre was close neough connections betwen what he did and what he was reqired to fo in hsi job - tehemployer was vicariously liaboe topay compenstation to thevictim legalprinciple - considered thethree part test

Question 26

lord toulson

Answer 26

in the simplest of terms teh courts has to consider two matter. thefirist question is what t=function sof field of activities have been entrusted by the employer or the employee or in evvery day language, what was the nature of his job seconadly, the courts must decide wherther there was a sufficient connection between the position in which he was mepoyed and his wrongful conduct to make it right for the employer to be held laibel under the pirnciple of osicla justice cox v ministry of justice 2016

Question 27

cox v ministry of justice 2016

Answer 27

some may be considered an employee even without a contract

Question 28

fletcher v chancery supplies ltd 2017

Answer 28

NO vl as their was no connection between the job and teh harm

Question 29

acting in the course of employment

Answer 29

the employee needs to be acting t=in teh course of their employmnet for the meployee to be liable for thjeir actions . this is a fact decided by thej ury in each individual case . cases appear o be weighted in avour of the cliamnat . there are tow possible outcome. 1. when there is vicariousliability because of an eployee is acting in teh course of their empoyment 2. when tere uis no vicarious liability because of teh employee is said not to be actig in teh course of their ,employment

Question 30

Tort committed in the course of employment

Answer 30

. Acting against orders .employee committing a criminal act .employee committing a negligent act .employee acting on a frolic of their own

Question 31

Acting against orders

Answer 31

If the employee is doing their job but acts against orders in the way that they do it, the employer can be liable for any tort committed by them

Question 32

Limpus v London general 1862 and rose v pently 1976

Answer 32

Employee can still be liable even when an employee has gone against order - train rge well -there employer’s responsibility - get rid of them

Question 33

Twine v beans express

Answer 33

Claimant husband was killed through the negligence of a driver who had been forbidden by his employer to give lifts. Driver was doing unauthorised act and the employer was gaining nonprofit. Lp - Going against orders can remove liability if the act is no part of the employers job

Question 34

Employee committing a criminal act

Answer 34

If an employee commits a criminal act during their work, the employer may be liable to the victim of the crime, if there was a close connection between the crime and what the employee was employed to do

Question 35

Lister v Hesley hall 2001

Answer 35

The warden of a school for children with emotional difficulties sexually assulted some of the children. He was convicted if criminal offences. House of Lords decided that there was a close connection between his job and what he did as assault were carried out on the school premesies when he was looking after the children Legal principle - established the test for loose connections between employment and crime

Question 36

N v chief constable of Merseyside police 2006

Answer 36

Two hours after he has gone of duty, d was parked outside a nightclub still in infirm. A first aider from the club was worried because a young)g women was very drunk and had taken deug ectascy. D offered to take her to the police station but instead to his house where he sexually assaulted her including rape. Held there was no close connections between Ds employment and the assaults. D had merely made the use of his uniform to gain trust and abuse it. Legal principle- the use of a uniform to gain trust and commit crime is not a close connectionm

Question 37

Mathis v pollock

Answer 37

A bouncer injured someone. Teh nightclub was held vicariously liable for the bouncers actions as he was encouraged to use force, to be violent intimidating and his criminal actions were closely connected to his work. Held - this principle was used in teh case of Mohammed v wm Morrisons supermarket plc 2006 it is fair that the victim will get compensation however it is unifair that teh employer who had no knowledge of the crimes being cried out by their employees. On the other hand, should the employer have been supervising them employee more closely

Question 38

Employee committing a negligent act

Answer 38

If an employee does their job badly, the employer can be liable for any harm their actions cause to another This should encourage employers tinagve a social responsibility and include costs of training in their underlying costs of running a business This may not lways be possible with modern working methods of working from home and could be considered unfair if the employee is working away from the employers eyes - lack of supervision working at home Century insurance co. Ltd v northers Ireland road transport board 1942

Question 39

Century insurance co. Ltd v northers Ireland road transport board 1942

Answer 39

A petrol tanker driver was deliverinf petrol to a petrol station when he lit a cigarette and threw the lighted match in the ground. This caused an explosion which destroyed several cars and damaged so,e houses. This employer was liable for compensation as the driver was doing his job, when though negligently. Legal principle - the employer can be liable for negligent behaviour of their employees and should make dangerous situations clear

Question 40

Employee acting in a frolic of their own

Answer 40

I’d the employee causes injury of damage to another while doing something outside the area of work then the employee will not be liable This is said to be the employee acting on a frolic of their own Differing results have been seen in Hilton v thomas burton Rhodes Ltd 1961 and smith v staged 1989 This creates inconsistent and unfair decisions for the victim and their families who are unless to claim compensation even though they have been injuries due to the cult of others

Question 41

Hilton v thomas burton Rhodes Ltd 1961

Answer 41

LP- employer is not libel of the employee on. Frolic of their own Differing results

Question 42

Remedy Pymnwt of compensation

Answer 42

The employee nay be ordered to pay compjesation In some cases the employee may not be able to pay - if they have insurance it’s a lot easier If the employer is liable, the employer may be ordered to pay compensation The claimant will only receive on payment Civil liability (contributions) act 1978 - compensation can be deducted c rom wages

Question 43

Other areas of vl

Answer 43

Parents can be ,aim,e for the behaviours or their children - under the age of criminal responsibility Prisons can be ,iable for the behaviours of their inmates Churches can be ,iable for the behaviours of the members - priests cases