Vicarious Liability

Question 1

What determines whether vicariously liability applies to an employer? (2)

Answer 1

1. Is the person who committed the tort an employee?

2. Was the tort committed in the course of that person’s employment?

Question 2

Employee v Contractor (2)

Answer 2

Employer can be vicariously liable for employee

Independent contractor legally responsible for his own actions

Question 3

The Control Test (Yewen v Noakes)

Answer 3

Established the control test, considers whether the employer has the power to control how the works done

Question 4

Hawley v Luminar Leisure (control)

Answer 4

It was decided that as the club exercised so much control over the bouncer in how he should do his work, they employed him and were vicariously liable for his actions

Question 5

Organisation Test

Answer 5

Distinction between contract OF service and contract FOR service

Question 6

Stevenson v MacDonald (organisation)

Answer 6

Lord Denning: “under a contract of service a man is employed as part of the business and his work is done as an integral part whereas a contract for services the work is not integrated into the business but is only an accessory to it”

Question 7

Multiple Test

Answer 7

Modern- considers various factors that may indicate employment/self-employment

Question 8

Ready mix concrete case (multiple)

Answer 8

The workers weren’t employees as they owned the vehicles, and another driver could be hired if they were ill

Question 9

The Multiple Test looks as issues such as: (3)

Answer 9

Methods of payment
Working hours
The level of independence of the employee/contractor

Question 10

Carmichael v National Power (multiple)

Answer 10

Held that the tour guide wasn’t an employee as she could refuse work on any given day so neither side had an obligation to the other

Question 11

Recent developments

Answer 11

Many cases have reached appeal courts that test whether or not the totties doe was an employee- Often no traditional employment relationship so it had to be decided whether “the employer” should be vicariously liable

Question 12

The course of employment- Salmond test (2)

Answer 12

(a) a wrongful act authorised by the master
or
(b) a wrongful and unauthorised mode of doing some act authorised by the master

Question 13

Authorised act- Beard v London

Answer 13

The plaintiff failed to provide any evidence that the conducter had been authorised to drive the bus

Question 14

Authorised act in an unauthorised manner (2)

Answer 14

Employer liable for this

However isn’t responsible if employee is acting beyond the scope of his employment

Question 15

Century Insurance v Road Transport (auth in unauth manner)

Answer 15

Held that the employer was liable- it was part of the authorised duties even if he was doing it in a negligent way so still in course of employment

Question 16

Rose v Plenty (auth in forbidden)

Answer 16

Held that the dairy company was vicariously liable for the milkman’s negligence as he was doing his job, even though disobeying orders by doing something that was expressly prohibited

Question 17

“A frolic of his own”

Answer 17

Something not related to the work and undertaken on his own count- employer won’t be liable

Question 18

Storey v Ashton (frolic)

Answer 18

Employer not liable as the employee was on a frolic of his own

Question 19

Unlawful act of employee (2)

Answer 19

Employer only vicariously liable if there’s a closeness of connection between the employment and the unlawful act e.g. a security guard using excessive force to stop a shoplifter

Question 20

Lister v Helsey Hall (unlawful act)

Answer 20

HoL held that the owner of the school was vicariously liable. They used a ‘closeness of connection’ test to determine the vicarious liability

Question 21

Travelling to work (2)

Answer 21

To and from work- not in course on employment

Travelling between sites during working hours and detour, employer may be liable

Question 22

Conway v Wimpey (travel to work)

Answer 22

It was held that the driver of the lorry unlawfully let Conway onto the lorry- out the scope of employment. Employer not liable

Question 23

Evaluation against vicarious liability (unfair on employers) (2)

Answer 23

The rule operates inconsistently and produces unfair court judgements- If you’re driving a company car your boss is liable, chauffeur is, taxi driver isn’t ROSE V PLENTY compared with TWINE V BEANS EXPRESS

Employer may be liable even for mere carelessness on employee’s part CENTURY INSURANCE

Question 24

In favour of vicarious liability (2)

Answer 24

Employer is responsible for the work and should ensure it is carried out safely ROSE V PLENTY

Employer benefits from the decisions in some cases STEVENSON V MACDONALD- shows that courts are conscious of imposing unreasonable burdens on businesses

Question 25

Remedies positive

Answer 25

More likely to receive compensation through claiming against the employer as they have the financial means

Question 26

Negative- fault based liability

Answer 26

Contradicts fault-based liability. The employer may have taken all steps to choose, train and supervise employees but will still be liable for their actions (link negligence)

Question 27

Multiple test- unfair on employers (2)

Answer 27

Modern methods of employment of working from home and flexible hours mean that it is not always possible for employers to supervise employees.
-Unfair to hold employers liable when it is impossible to

Question 28

Multiple test- fair on employers

Answer 28

Forces employers to have a social responsibility for their business and employees