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
