Vicarious Liability Flashcards
What kind of relationships?
Employment Police Agency Car owner & driver Partnership Joint venture
Factors to distinguish between employees and contract for services ( 8 )
Scope of duties (wider scope, more likely to be employee, not just for one specific thing
Remuneration - wages / salary v payment for one off job
Personal nature of service
Identity of party work done for ie company not client
Identity of person doing work
Source of income
Control
Equipment
What is the rule for borrowed employees?
Initial presumption - while working for C, A still employed by B (Viasystems v Thermal Transfer)
Presumption can be displaced if A was working as much under C’s control while working for them that C has power & responsibility to stop him commuting tort
Who then had power and responsibility to stop A from committing the tort
Can pin liability on two employers at once
Two key questions to establish liability
When is someone said to be the employee of another?
When is a tort committed in course of his employment?
When do we impose liability, what kind of liability?
YES
Where employer had authorised act
Where employee does work employed to do, but inappropriate manner which master does not and would not authorise
NO
If authorised only to do particular with / class of work and does something pursuer scope, off on frolic of his own
If uses master’s time or resources for his own purposes. Even expressly prohibited acts (Rose v Plenty)
Fairness considerations
Balancing interests of victim & employer (Fleming)
Unfair burden on employer, overemphasis on victim’s side (Giliker)
Should not include crimes and intentional acts, goes against MT&C. (Neyers)
In what ways can vicarious liability be said to be a strange mechanism? (Atiyah)
Jars again 2 key ideas
1) only liable for your own acts or intromissions
2) have to be at fault
But joint liability & accessory liability also go against this
What is it?
A performs an act which amounts to a tort / Delict, harming B. Because of the relationship between A & C, can be held liable for Delict. Not accessory liability as employer has not played role in Delict, only treated as such by law. Contrast with non-delegable DoC.
Historical policy reasons for imposing liability? (Baty & Atiyah critiques)
Focus on the idea that employer is somehow responsible whereas newer ones focus more on financial considerations.
Control & master and servant
Master’s benefit from servants work
Choice of employees
Indulgence by employing people rather than doing work yourself
It is a liability to keep servants / employees
Modern policy justifications
Deep pockets
Deterrence
Loss spreading or distorts competition (Calabresi)
Mersey Docks v Coggins
Crane operator - A
Harbour authority that owned crane - B
Stevedores who hired crane - C
A was negligent in the operation of the crane and C suffered damage. Initial presumption of B as employer had not been shifted. C did not exercise any control over how A did the work, only told him what to lift up and drop off
Hawley v Luminar Leisure
A - bouncer, B - club that supplied bouncers, c - firm that ran nightclub.
One night a fight broke out and in dealing with the fracas, A punched someone. C exercised greater control over how A discharged duties as bouncer, much more control over how A did the job :. sole power and responsibility to stop people beating up customers lay with him. Presumption shifted here
Viasystems v Thermal Transfer
Apprentice metal workers learned trade under supervision of a fitter. B supplied metal workers to help out on building sites. C had been eg ages to install works in a factory. B supplied C with a trained fitter and A. A carelessly set off a sprinkler, started flood
Exercised control over how A did job and this displaced the presumption that A was B’s employee. Power and responsibility was however split between B and C. B’s fitter also had power to prevent tortious act as he was in control. Liability can be imposed on 2 employees at once
Kirby v NCB
Injuries sustained when there was an explosion in the colliery caused by worker smoking. Pursuers claimed that defenders were in breach of duty to ventilate mine.
No, not acting in course of his employment
Lister v Hesley Hall
Boarding house warden abused boys in his care. Vic lib?
Because of opportunity provided by his work, he was able to do this.
Close connection test used instead of Salmond (wouldn’t have worked as act not specifically authorised / authorised mode of doing work)
Acts so closely connected that it would be fair & just to hold that the employee’s employer was Vic lib. Policy - didn’t want these people to get off!
