Vicarious Liability Flashcards
Define vicarious liability
Where a third person has legal responsibilities for the unlawful actions of another, commonly employer and employee
Why would VL be justified
V can receive compensation
Employer may have degree of control over workplace
Responsible for hire fire
Make sure employees trained
Employer should supervise better
Usually be in a better position to pay compensation
What are the two main tests used to prove VL
Person alleged to commit tort an employee?
Did employee commit tort during course of his or her employment?
What is the first of three tests used to test VL and what is the criteria
Control test,Short 1946 control of a master over a servant like method of working, payment of wages etc. Useful for borrowed workers like Mersey Docks 1947, that •terms in any hire contact of an employee not decisive
•permanent employer presumed liable unless contrary proved
•employee hired out can be inferred that hirer becomes employer. If hired out with equipment then inference not as strong as hirerer may not have say in how equipment used
Can more than one employer be vicariously liable
Yes viasystems 2005
What is the intergration test
Stevenson Jordan 1952: employee if work fully integrated into the business. If only an accessory to the business. Ie master of a ship or a chaffeaur
What is the final VL test and what is it’s criteria
The economic reality or multiple test established in Ready mixed concrete 1968 as:
- ) employee agrees to work for a skill or work for a wage
- ) employee express or implied accepts work subject to employer
- ) all other contract considerations are considered with an employment contract.
More recent external factor include ownership of tools, payment method, tax and NI deducted auto, job description and any job independence
Recent developments:
E 2012, COA required to look for a relationship akin to employment, which established a connection between a D and an actor that was sufficiently close so as fair to impose liability. Severa questions could also be considered like control of employee by employer, control of contractor, intergration and entrepreneur test
What does mohamud 2016 and cox 2016 say about the economic realities test
M: if employee acting within field of employment like at work in working hours and close connection between what he did and what required to do then VL
C: if person carrying on actives as integral part of business activities carried on by D and for it’s benefits then D VL
What does the employee have to do to be VL
Acting in course of employment
If an employee does a job but acts against orders in way it’s done then can employer be liable
Yes as doing what employed to do but disobeying specific orders Limpus 1862/ rose 1976
If employee doing something outside what employed to do then VL?
No beard 1900
If an employee commits criminal act during employment then VL?
Maybe if there is a close connection between job and crime Lister 2001 BUT if outside work hours but uses job to commit crime no VL N 2006
Can an employer be VL if employee does job badly so injury caused to another
Yes Century insurance 1942
Is an employer liable if employee goes off on frolic of own outside area or time of work
No Hilton 1961 unless still being paid Smith 1989
How can a V recover compensation if VL proved
VL employer will pay, can only receive one payment. Civil liability act 1978, employer can recover compensation paid out by employer by employee by deducting wages for example
