Vicarious Liability Flashcards
Vicarious liability introduction/ definition
- The D may be liable for the tortfeasors actions under vicarious liability
-Vicarious liability is where the employer (the D) is liable for the negligence of employees (the tortfeasor). Two conditions must be proved as clarified in (Trustees of Barry’s congregation vs BXB).
Vicarious liability stage 1 part 1- obvious cases
- Stage one asks whether the worker is an employee or an independent contractor. For obvious cases, we use the multiple test:
Ready mix concrete vs Minister of pensions- held the following factors were important when establishing who is an IC or an employee:
1- Whether a wage, national insurance, and tax is being payed
2- who provides tools/ equipment?
3- whether the worker has to obey orders
4- The exercise of control over how work is done
5- the acceptance of any business risk.
6- The power to hire/ fire replacements
Vicarious liability stage 1 part 2- less obvious instances
For times when it is not obvious, we use the akin to employment test established in Christian Brothers:
1- The employer is more likely to have insurance/ be able to compensate the victim
2- The act is committed by the employee on behalf of the employer.
3- The employees activity is likely to be part of the business activity of the employer
4- The employer by employing the employee created the risk of the act being committed
5- The employee will have been under the control of the employer
- or they are an IC, and the employer will not be liable
Vicarious liability stage 2 introduction/ summary
- Secondly, we need to question, “Whether the employees acts were so closely connected with acts the employee was authorised to do that, it may fairly and properly be regarded as being done in the ordinary course of their employment.” (Morrisons vs Various claimants)
- Explain and apply all relevant factors as to whether they were or were not acting within the course of their employment
-Consider side rules
Vicarious Stage 2- when will employer be liable?
An employer will still be liable even if the employee was:
1- Acting excessively (Vasey)
2- Negligently (Centuries Insurance)
3- In an unauthorised way (Rose v Plenty)
4- Criminal act (Morrisons vs Mohamud)
5- abused students (Lister vs Hesley hall)
- Note- if the abuse is towards an adult, it is for the courts to carefully consider on the facts, the extent of the connection between the wrongful act and the acts that the tortfeasor was authorised to do (Trustee’s of Barry congregation vs BXB)
Vicarious stage 2- when will an employer not be liable
- An employer will not be liable if the employee was:
1- Doing something completely unrelated to their job (Heasemans vs Clarity cleaning)
2- Committing a frolic of their own (Storey vs Ashton)
3- Personal vendetta (Morrisons vs various claimants)
4- Abuse to colleague/ adult, outside of work (Trustees of Barry congregation vs BXB)
Vicarious stage 2 side rule
- Travelling to and from work- employer will usually not be liable unless expenses are being payed (Smith vs Stages)
