Vicarious liability Flashcards
Vicarious liability
This is a form of secondary liability where one party is held liable for the torts of another
Vicarious liability is strict liability so not dependent of fault
what are the 3 elements of a vicarious liability tort
- Tort committed
- Employment relationship
- In course of employment
Readymixed Concrete v Minister of Pensions (Readymix)
- Party held not to be employee as owned the asset and bore risk
- 3 levels of employment relationship;
a. Remuneration
b. Control (Yewens v Noakes)
c. Other provisions of contract
Warner Holidays Ltd v Secretary of state for social services
Set out the ‘other provisions’
- Mutuality of obligation
- Labelling
- Tax
- Exclusivity
- Proft v loss
- Sick pay
- Who’s equipment
O’kelly v THF
No mutuality of obligation for casual wine waiter, so not an employee
Massey v Crown Life
What the contract or parties label the relationship as is not conclusive
Airfix v Cope
How you pay tax is a factor but is not conclusive. If you pay PAYE tax then likely to be employee. Self assessment = not employee
Argent v Minister of social security
If contract exclusive then more likely to be employee
Hall v Lorimer
If you bear profit and loss then you are not likely to be employee
Mersey Docks v Coggins and Griffiths
General rule; employee remains employed by the original employer for the purpose of vicarious liability
Can be rebutted by;
- Level of control (most important)
- Who pays wages
Vassystems
2 employers can be liable
Rowe v Herman
General presumption that there is no liability for independent contractors unless;
- Defendant ratifies tort
- D is negligent in selecting contractor (pinn v rew)
- Statutory duty
Padbury v Holiday & Greenwood
No liability for causal negligence of independent contractors
Winfield
Winfield; 3 things are in the course of employment;
- Expressly/impliedly authorised
- incidental to employment
- Unauthorised way of doing something which is authorised
Limpus v London General Omnibus
Tort in course of employment when bus driver raced bus with other bus driver. Judged to be unauthorised way of doing something which is authorised
