Vicarious Liability Flashcards
Define ‘Vicarious Liability’
Vicarious Liability arises when someone other than the tortfeasor is held liable for the tort of another.
When would a claim of Vicarious Liability arise?
Generally today VL arises where an employer may have to pay damages, usually for personal injury for negligence committed by his employee.
Why is this justified?
Normally the employer will have taken out insurance against negligence by his employees.
It can be easier to make a claim when it is not precisely clear which employee has been negligent, but nonetheless it is evident that negligence has taken place: think ‘res ipsa loquitur’ (the facts speak for themselves).
Give the two conditions required to make a claim of Vicarious Liability
There must be a relationship of employer and employee rather than an independent contractor; and
The tort must be committed in the course of employment
In what case was the ‘employee’ test outlined?
Ready Mixed Concrete Ltd v Minister for Pensions (1968)
What is the 3 part ‘employee test’?
The person agreed to provide work and skill for the employer in return for payment;
They agree (expressly or impliedly) to be subject to the employer’s control; and;
The other terms of the contract are consistent with the exercise of a contract of service
Who is liable for Agency Workers?
For agency workers or where the employee is ‘shared’ the court would observe the facts and apply responsibility to either the employer, the permanent employer, or both.
Name three cases relating to ‘Course of employment’
Twine v Beans Express (1946); a driver gave a lift to someone who was killed as a result of negligent driving, employer expressly forbid giving of lifts and therefore not liable.
Rose v Plenty (1976); the milk float accident, company gained a benefit from the young boy and therefore held liable. Lord Denning regretted this decision.
Hilton v Thomas Burton (Rhodes) Ltd (1961) - deemed a ‘frolic of his own’.
Criminal Acts of an employee -
What was the traditional approach? Give a case law example.
The traditional approach as in Warren v Henlys Ltd (1948) is that an employer will not be held liable for the criminal acts committed by an employee.
Criminal Acts of an employee -
In what recent case was ‘a close connection’ enshrined into precedent?
Lister v Hesley Hall Ltd (2001) created a new precedent in that the employer can be held liable provided there is a “close connection” between the employment and the crime committed.
Define “Res Ipsa Loquitur”
“The Thing Speaks for Itself”
An event happens where there is harm caused, but circumstances infer that negligence has taken place. This effectively reverses the burden of proof and the defendant must prove they were not negligent.
List the Six Defences against a claim of VL
Consent (volenti non fit injuria) - ICI v Shatwell (1965)
Contributory negligence
Necessity
Illegality
Inevitable accident
Statutory authority (if a statute authorises something that would amount to a tort)
