vicarious liability and joined tortfeasors

Question 1

definition

Answer 1

employer held strictly liable for the tort of his employees

Question 2

elements (2)

Answer 2

relationship;
control test + composite test

scope of employment (falls within what they are meant to do)
limitations (5);
1. carelessness of a servant 
2. mistake by a servant
3. willfully wrong by a servant 
3. theft by servant 
4. fraud by a servant

Question 3

defence for employer

Answer 3

employer’s indemnity. proved through (2);

1. contribution proceeding (limited to the sum which could have been recovered by the claimant)
2. indemnity clause (in the contract)

Question 4

joint and several tortfeasors

definition + purpose

Answer 4

GENERAL RULE: The claimant is entitled to sue one or all of them. Therefore, the claimant has to recover the full amount.

Differentiate:
-JT: same damage of common design.
If, for example, there are three partners, and the creditor sues all of them for the outstanding loan amount and one of them pays the liability, the creditor cannot recover further amounts from the partners who did not contribute to the liability. Ex.Merryweather v. Nixon

-ST: different damages by different persons but same claimant harmed. Parties are liable for only their respective obligations.
For this one, the claimant can only recover the full amount for the extent of contributory.

OVERALL, It means that if the claimant pursues one defendant and receives payment, that defendant must then pursue the other obligors for a contribution to their share of the liability.

Question 5

case (1)

exceptions (2)

Answer 5

Merryweather v. Nixon: M and N conjointly (JT) destroyed the machinery which belonged to R, eventually, R brought an action against both and obtained a claim of 840 pounds by way of the judgment delivered in his favour. The whole amount was levied on M, who again sought contribution from N for half of the amount by filing a suit against him. The court laid down that M could not recover.

Exceptions(2):
1. Not applicable in cases of Indemnity, where one man employed another to do certain acts, provided the acts were not unlawful in themselves by the way of their existence, for the purpose of asserting a right.

2. vicarious liability: Not applicable where there exists a right of contribution between the directors of a company who are jointly liable for the misrepresentation contained in the prospectus.