Vicarious Liability Flashcards
Hall v Lorimer - “business on their own account”
Test for employee status - If someone is there ‘on their own account’ then they will not be an employee - e.g. own equipment, charging varying rates, employing helpers, sending out invoices and having quite a few clients
Ready Mixed Concrete v Minister of Pensions
Test of employee status - 1. provision of work and skill in return for payment, 2. subject to employer’s control, 3. terms are consistent with contract of service - things like provision of own materials or ability to employ staff will suggest the contrary
Ferguson v Dawson
Written contracts detailing the status of employment are instructive but not decisive - even if it expressly states ‘self-employed’ not necessarily so
JGE v Trustees of the Portsmouth RC Diocese Trust
A bishop/priest relationship was strictly neither employer/employee nor independent contractor but applying the usual tests the relationship was one most akin to employer/employee and the bishop was vicariously liable
Hawley v Luminar Leisure
Usually companies hiring through agencies cannot be vicariously liable but sometimes they are considered an employer - here, the bouncer had been sourced through an agency but worked there for 2 years on a day-to-day basis so they were liable
Carmichael v National Power
Casual workers are not employees: there is no mutual obligation to work or give work
Mersey Docks and Harbour Board v Coggins and Griffiths
Usually the permanent employer will be liable for the liability unless the company can show good reason that the ‘borrowing’ company exercised control, paid wages, had responsibility for preventing the negligent act, etc.
Viasystems v Thermal Transfer
In borrowing workers, liability should be sometimes shared – where there is an equal right to control and an equal right to prevent negligence
Salmond on Torts
Course of employment: a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master
Century Insurance v NI Road Transport
The employer was doing his job (driving the tanker) but in a negligent way (lighting a cigarette near petrol) so was in the course of employment and the employer was liable
Limpus v London London General Omnibus
An employer will not be liable if he expressly prohibits an act, however, if the prohibition concerns the way in which a job is done, rather than the scope of the job, he will be liable - here was liable for a crash of a bus driver who had been prohibited from ‘racing’, but this concerned the job he was doing i.e. driving the bus
Lloyd v Grace, Smith & Co
Employers can only be vicariously liable for a crime which is also a tort, this is not criminal liability - Up until recently liability was only found where actual fault lay on the part of the employer e.g. poor supervision which led to an employee defrauding someone
Lister v Helsey Hall
Viacrious liability may be imposed for illegal acts, where the act was so closely connected with the employee’s job as to make it fair to impose liability - here it was a warden’s sexual abuse in the course of his employment, this obviously went outside the authorised act but was ‘inextricably interwoven’ into his day-to-day duties
Dubai Aluminium v Salaam
Confirmed Lister - it is the ‘direct and close connection’ between the employee’s duties and the criminal act
Mattis v Pollock (trading as Flamingos Nightclub)
Vicarious liability is more likely to be found where it would be expected, like here, from a bouncer, who was not in the nightclub but it was his working hours, and also where a rugby player punched someone during a match
MAGA v Trustees of the Birmingham Archdiocese of the RC Church
Despite the church’s arguments, the facts passed the Lister test which took account of the priest wearing robes, abusing the boy on church premises, being given special responsibility for young children and having to spread the Catholic faith
Catholic Child Welfare Society and others v The Institute of the Brothers of the Christian School
Despite them being bound by vows and not a contract the relationship was still akin to an employer/employee relationship and the institute was also vicariously liable - there was a sufficiently close relationship between the work and the abuse
Heasmans v Clarity Cleaning
Frolics of their own - employers are not liable, has to be a close connection between act and employment - someone who cleans telephones but makes long distance calls while doing it is not the course of employment
Hilton v Thomas Burton
Making a journey which is not permitted (7 miles out to get lunch) will be seen as a frolic of one’s own and not authorised by, nor in the course of, employment
Williams v Hempsill
Taking a long detour here meant that the employers were vicariously liable because it was the D’s job to carry people around
Smith v Stages
An employee travelling to and from a regular workplace to home will not give rise to vicarious liability, even if the vehicle is the employer’s, it will, however, if the employer states that their transport must be used, travelling between two workplaces, being paid for time spent travelling, travelling during employer’s time, etc
Majrowski v Guy’s and St Thomas’s NHS Trust
An employer can be liable for breach of statutory duty even where the statute alludes to only an individual being liable - e.g. harrassment
Wallbank v Wallbank Fox Designs (liability)
An employer can be liable for violence committed by an employee against another employee where there is a ‘sufficiently close connection’ with the job
Lister v Romford Ice and Cold Storage
Indemnity - if the employer is sued then he can then sue his employee for damages in part or in full
Padbury v Holliday and Greenwood
Limited liability for ICs such as non-delegable duties, poorly performed delegable duties (unsuitable person) but not acts which were outside what they were contracted to do
