Vicarious Liability

Question 1

Definition of Vicarious Liability

Answer 1

Means that someone other than the person who committed the tort is responsible for his actions has to pay compensation

Question 2

2 part test for an employer to be vicariously liable

Answer 2

1. ) Was the person alleged to have committed the tort an employee?
2. ) Did the employee commit the alleged tort driving the course of his employment?

Question 3

three tests

Answer 3

• control test
• integration test
• economic reality test

Question 4

the control test

Answer 4

OLD TEST: Yewens v Noakes.
Lord Bramwell stated that a servant is a person who subject to the command of his master as to the manner in which he shall do his work.
‘the final test, if there is to be a final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the person alleged to be a servant.’
Performing Rights Society v Mitchell and Booker
It was held that the employee(Y) will remain as the employee of the general or permanent employer(X) although another employer (Z) borrows his services. This is because, there is a presumption that the control of the employee (Y) still remains on employer (X).

Question 5

integration test

Answer 5

Stevenson, Jordan & Harrison Ltd v MacDonald and Evans
one feature which seems to me to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it’.

Question 6

economic reality test

Answer 6

Ready Mixed Concrete (South East) Ltd v MPNI

1. ) the skills provided must be in exchange with wages.
2. ) control elements should exist on the employer (resembles control test)
3. ) the contract provision must be in consistent with the control of service. As in this case, Lord McKenna J held, due to the freedom of delegation, the contract between the plaintiff and defendant was contract for service (self-employment).

Question 7

eemployed or self-employed

Answer 7

• employees are less likely to own tools and equipment
• pay tax and National Insurance
• regular wages
• take work from others = self-employed
  Carmichael v National power = not employed
  Ferguson v Dawson [1976] = were employed

Question 8

circumstances in which tort falls within the course of employment

Answer 8

• acting against orders
• criminal act
• Negligent act

Question 9

acting against orders

Answer 9

employer is still liable if employee acts against orders if the employee is doing their job e.g. CASE: Rose v Plenty [1976] It was said to not use children. he did and the children got hurt. However, because the employer was benefiting from the children’s work, employer was liable.
if employer is not benefiting then he is not liable e.g. CASE twine v Beans Express

Question 10

Criminal Act

Answer 10

Employer may be liable to the victim if there is a ‘close connection between the crime and what the employee has employed to do.
CASE: Lister v Hesley Hall [2001]

Question 11

Negligent Act

Answer 11

if an employee does a bad job the employer is liable. CASE Century Insurance v NIRB
petrol tanker delivered petrol to station to light cigarette. the employer was liable.

Question 12

circumstances that are not within the course of employment

Answer 12

• a ‘frolic’ of his own

- payment?

Question 13

a ‘frolic’ of their own

Answer 13

causing damage outside of work
CASE: Hilton v Thomas Burton, took unauthorized break, drove to cafe, on the way back he killed a man. the employer was not liable.
HOWEVER, if the employee was paid during their ‘frolic’ then employer will be liable Smith v Stages [1989]
employee was paid to drive somewhere, there was an accident, employer was liable.

Question 14

compensation: Civil Liability Contributing Act 1978

Answer 14

the employer can recover compensation paid from the employee by e.g. deduction from wages