Vicarious Liability Flashcards
What determines whether vicariously liability applies to an employer? (2)
- Is the person who committed the tort an employee?
2. Was the tort committed in the course of that person’s employment?
Employee v Contractor (2)
Employer can be vicariously liable for employee
Independent contractor legally responsible for his own actions
The Control Test (Yewen v Noakes)
Established the control test, considers whether the employer has the power to control how the works done
Hawley v Luminar Leisure (control)
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
Organisation Test
Distinction between contract OF service and contract FOR service
Stevenson v MacDonald (organisation)
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”
Multiple Test
Modern- considers various factors that may indicate employment/self-employment
Ready mix concrete case (multiple)
The workers weren’t employees as they owned the vehicles, and another driver could be hired if they were ill
The Multiple Test looks as issues such as: (3)
Methods of payment
Working hours
The level of independence of the employee/contractor
Carmichael v National Power (multiple)
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
Recent developments
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
The course of employment- Salmond test (2)
(a) a wrongful act authorised by the master
or
(b) a wrongful and unauthorised mode of doing some act authorised by the master
Authorised act- Beard v London
The plaintiff failed to provide any evidence that the conducter had been authorised to drive the bus
Authorised act in an unauthorised manner (2)
Employer liable for this
However isn’t responsible if employee is acting beyond the scope of his employment
Century Insurance v Road Transport (auth in unauth manner)
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
Rose v Plenty (auth in forbidden)
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
“A frolic of his own”
Something not related to the work and undertaken on his own count- employer won’t be liable
Storey v Ashton (frolic)
Employer not liable as the employee was on a frolic of his own
Unlawful act of employee (2)
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
Lister v Helsey Hall (unlawful act)
HoL held that the owner of the school was vicariously liable. They used a ‘closeness of connection’ test to determine the vicarious liability
Travelling to work (2)
To and from work- not in course on employment
Travelling between sites during working hours and detour, employer may be liable
Conway v Wimpey (travel to work)
It was held that the driver of the lorry unlawfully let Conway onto the lorry- out the scope of employment. Employer not liable
Evaluation against vicarious liability (unfair on employers) (2)
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
In favour of vicarious liability (2)
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
Remedies positive
More likely to receive compensation through claiming against the employer as they have the financial means
Negative- fault based liability
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)
Multiple test- unfair on employers (2)
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
Multiple test- fair on employers
Forces employers to have a social responsibility for their business and employees
