Vicarious Liability Flashcards
Three steps to establish vicarious liability
- a tort was committed
- by an employee
- in the course of employment
Test of an employee
Ready Mixed Concrete
- Remuneration
- Control
- Other Contractual Provisions
Remuneration
- Who pays them and how?
- Are they paid a regular salary or a lump sum?
Control
- What can they be required to do?
- The higher level of control, the more likely the person is an employee (Yewens v Noakes)
- tax case about the status of a clerk
Other Contractual Provisions
Are the provisions of the contract consistent with a contract of service?
- if the employee bears the risks, profits and losses of the job then he is unlikely to be an employee
(Ready Mixed Concrete)
Ready Mixed Concrete case
The defendant drove the company’s cement mixer, which he was responsible for hiring, insuring and running, and was paid per mile, so he was held not to be an employee.
Further Factors to consider when examining contractual provisions.
Warner Holidays v Secretary fo State for Social Services (had to pay national insurance for it's contracted holiday camp entertainers) - Provision of tools and equipment - Tax - Hours of Work - Exclusivity - Labelling - Mutuality of Obligations - Integration
Does the employer provide them with tools and equipment
Ready Mixed Concrete
Did the employer pay his tax through PAYE?
Airfix Footwear v Cope
- woman worked from home making shoes
The Defendant did not deduct for National Insurance and tax so deemed an employee
Ferguson v Dawson
Can the employer prevent him from taking other jobs?
Argent v Minister of Social Security
- teacher did not teach the syllabus and was free from the school
Is he called an employee?
Although this is not conclusive
Massey v Crown Life Insurance
- changed his name status from an employee to a contractor
Can the employer require the employee to work, and vice versa?
O’Kelly v Trusthouse Forte
- Waiters at a london hotel were not obliged to turn up when asked and the hotel were not obliged to give them work
Is the employee integrated into the business of the defendant?
Stevenson v Macdonald & Evans
When lending employees, the presumption is that the original employer remains liable.
Mersey Docks v Coggins and Griffiths
- hired out crane driver negligently injured somone
When lending employees, where both employers have equal control over the employee then they may have dual liability.
Vivasystems v Thermal Transfer
- sub-contracted employee negligently fitted an air conditioner causing property damage
The contracted doorman of a nightclub was an employee as the nightclub had detailed control over him and he had to wear a uniform
Hawley v Luminar Leisure
The court will assume that the employee is lend under the employment of the initial employee unless otherwise proven
Biffa Waste v Machinenfabrik
Vicarious liability may exist even where there is no contract of employment as long as the relationship between the tortfeasor and the defendant is ‘sufficiently akin to that of an employer and emplyee’
Christian Brothers
Teachers belonging to an unincorporated religious association working at a school were ‘akin to an employment relationship’
Christian Brothers.
Vicarious liability can exist where the tortfeasor carries on activities assigned to him by the defendant as ‘an integral part of the defendant’s operation and for its benefit’
Cox v Ministry of Justice
- caterer was injured by a prisoner serving in the canteen
Foster parents has a relationship with the Local Authority that was akin to employment.
NA (Armes) v Nottinghamshire CC
NA (Armes) v Nottinghamshire CC: 5 points for a relationship akin to employement
- The body has the means to compensate
- The tort was committed as a result of activity undertaken on behalf of the body
- The activity is an integral part of the bodies’ activities.
- The body created the risk by placing the claimant in the activity
- A high degree of control is not necessary for vicarious liability to be imposed.
The bank was liable for sexual assaults committed by the doctor during those examinations
Various Claimants v Barclays Bank
Priest of the Catholic Church were found to be akin to employees
JGE v English Province of our Lady Chapel
An employee will be in the course of employment if there is a ‘closeness of connection’ between the employee’s act and their employment
Lister v Hesley Hall
Bus drivers racing each other were held to be in the course of employment
Limpus v London Omnibus
Railway porter pulling a man of the train was held to be in the course of employment
Bayley v Manchester Railway
Demanding and making an arrest as an off duty police officer was held to be in the course of employment
Bernard v Att Gen of Jamaica
Fight on the rugby field after the match had finished was held to be in the course of employment
Gravil v Redruth Rugby Club
Petrol Tanker driver smoking and causing a fire was held to be in the course of employment
Century Insurance v NI Road Transport
‘interacting with customers’ was held to be in the course of employment
Mohamud v Morrison Supermarkets
- racist abuse against a customer
If the employee’s act is a ‘frolic of his own’ it will generally not be in the ‘course of employment’
Joel v Morison
- driver of the horse and cart had taken a large detour to visit his friend
Conducting and driving a bus unasked was held not to be in the course of employment
Beard v London Omnibus
A bouncer following a victim home and attacking him was held not to be in the course of employment
Daniels v Whetstone
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A policeman helping an immigrant woman if she had sex with him was held not to be in the course of employment
Makanjuola v Metropolitan Police Commissioner
Harassment between two police officers who had broken off a relationship outside work was held not to be in the course of employment
Allen v CC Hampshire
Express Prohibition
Employers are generally not liable where an employee has acted contrary to an express prohibition
A sign in a lorry’s cab forbade a lorry driver from picking up hitchhikers, so the company was not liable for the hitchhiker’s injuries when the employee negligently crashed his lorry after picking up a hitchhiker.
Twine v Bean Express
A 13 yo boy injured when helping a milkman on his rounds was able to recover because it was held that the milkman was still acting within the course fo his employment despite a prohibition by his employer on using children to assist with his round
Rose v Plenty
- an unauthorised way of doing something authorised
Derivations from an authorised route are not in the course of employment
Smith v Stages
Criminal acts are generally thought not to be in the course of employment
Warren v Henleys
- petrol station worker assaulted a worker
People may still be in the course of employment if there is a close connection between the crime and what they are employed to do
Lister v Hesley Hall
Warden committed sexual assaults at a children’s home during employment when he was hired to protected the children
Lister v Hesley Hall
A bouncer at a dodgy club, who stabbed the claimant was held to be in the course of employment as he was encouraged to use violence as part of his job
Mattis v Pollock
A priest who sexually assaulted a boy was held to have been acting in the course of employment, as there was a sufficient connection with his job
MAGA v Trustees of Birmingham Archdiocese
A customer suffered racist abuse from a supermarket employee. It was held that the employee should be seen as ‘wearing the badge’ of his employer.
Mohamud v Morrison supermarkets.
Outline of a Vicarious Liability Problem
A tort has been committed
There is an employment relationship
Was the Tort Committed in the course of employment
