Vicarious Liability Flashcards
What is vicarious Liability
Imposing Liability on someone who isn’t a fault
Employer is liable for a mistake of their employee
Elements of vicarious liability
- Employee commits a tort
- Employer-Employee Relationship
- Employee committed the tort ‘in the course of this employment
Justification for vicarious liability
Lord Philips ‘The policy underlying VL ‘is to ensure, so far as it is fair, just and reasonable that liability for a tortious wrong is borne by a defendant with the means to compensate the victim
Employee commits a tort
Employee:
- Damage
- Duty of Care
- Breach of duty
- Causation
- No defences
Employer-Employee relationship
Contract of service = employee
Contract for series = independent contractor
How do courts Identify an employee
Court Should look at the relationship as a whole.
Ready Mixed concrete v Minister of pensions and National insurance. - Employee - employer relationship.
Owner driver of a truck
Was he employed by the company who ran the business?
Drivers owned their truck
Had to be painted company colours, had to wear a uniform whilst working
Vehicle could be used at work for another company.
Couldn’t make alterations to vehicle without consent.
Had to be company at all times
Court - they weren’t employees, they were contractors.
Was the tort committed in the course of employment.
Old approach: the Salmond test
The tort is committed In the course of employment if it either:
A wrongful act authorised by the master or
A wrongful and unauthorised mode of doing some act authorised by the master
Century Insurance Co Ltd v Northern Ireland Road Transport Board (facts)
Tort Feeser = Petrol tanker driver delivering petrol to petrol station
He lit a cigarette, caused explosion which damaged claimants property.
Although the act was for his own benefit - it was done during the course of his employment making his employee vicariously liable.
Rose v Plenty (facts)
Milk man was employed by defendant
Wanted help by employer expressly said he wasn’t allowed to get help from children.
He still had children helping him , drove negligently and hurt the children.
Tort was committed within the course of his employment - wrongful manner.
Morris v CW Martin & Sons Ltd (facts)
Employee was working in dry cleaners - stole fur coat
Considered a tort he committed within the course of his employment - wrongful manner.
Tratman v North Yorkshire
Trotman v North Yorkshire CC
Teacher took disabled children on a residential road trip and sexually assaulted one.
Sexual abuse or physical abuse was considered to be outside of the course of employment.
JGE V Trustees of the Portsmouth Roman Catholic Diocesan Trust
- Brought again catholic Church for sexual abuse
- Claimant was living in forest home by nuns, whilst living there, priest came in and abused her.
- Priest is not employee of church - officer holder, they don’t get a wage
But court held this was a relationship akined to employment, similar to employment relationship.
Unincorporated Association: Various Claimants v Institute of the Brothers of the Christian Schools.
- Claimant suffered a form of abuse from former schools
- School accepted it would be vicariously liable for what the teachers done
- School had been supplied by the Brothers of the Christian Schools
- Means they are then vicariously liable too
- ## Court - this is a relationship akinned to employment
5 points on a relationship akin to employment.
(Lord Philips in Christian Brothers)
Lord Philips Test
- They employee is more likely to have the means to compensate the victim and the employee can be expected to have insured against this liability
- Tort will have been committed on behalf of the employer.
- The employees activity is likely to be part of the business activity of the employer
- The employer would have created the risk which employee operates within
- Employee would have been under the control of the employer to some extent.
