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
Joel v Morrison
Where not acting in the course of employment the employee is judged to be ‘on a frolic of their own’
beard v London General Omnibus
Conductor drove bus. Crashed and killed a passenger. Not in course of employment, as does not fit any of Winfield’s criteria
Daniels v Whetstone Entertainment
Bouncer assaulted nigh clubber goer, once in night club and once afterwards on the street. Employer not liable for second assault as not in course of employment
Twine V Bean Express
Employer banned picking up of hitchhikers. Employee did it. Therefore tort comitted not in course of employment
Rose v Plenty
Employer banned milkmen from letting employees let people assist with mlikround. Employee let 13 year old boy assist. Still judged to be in course of employment. Denning LJ act was ‘for the employers business’ so was unauthorised mode of performing the task he was contracted to do.
Storey v Ashton
Detour from route taken after delivery of wine to see relative. Injured plaintiff. Not in course of employment. No vicarious liability.
SMith v Stages
employees injured in car crash. Were in company hours and had travel expenses paid, therefore in course of employment and employer vicariously liable
Warren v Henleys
Petrol attendant punched customer. Outside course of employment as criminal act
Lister v Hesley Hall
Sexual assaults as warden of childrens home was in course of employment due to facilitation of assaults by employment role
S1 Civil Liability Contribution ACt
Employer can claim indemnity off employee if contracted to do so
Mattis v Pollock
If there is a ‘close connection’ between act and employment then even if it is criminal act it will be judged to be in the course of employment. Circa lister v Henley
