Vicarious Liability Evaluation Flashcards
What is VL?
When an employer can be sued for the acts/omissions(tort) of an employee
How do you introduce an evolution question ?
REWORD THE QUESTION!
what is VL?
What is the 1st element of VL
identify tory, no tort = no VL
What is the second element of VL and case
Employment status (Barclays Bank Plc V VCs)
What did Lady Hale say in Barclays Bank Plc V Various Cs?
‘for any contractor carrying out his/her independent business it is not necessary to carry out the various tests’ or ‘of a relationship between 2 persons making it proper for the law to make one pay for the fault of the other’
What is the 1st test under Clear contract of Service case and explanation
control test (Yeowans V Noakes)
more control over staff more likely they’re an employee
less control, less likely (Mersey Docks)
What is the 2nd clear contract test case and explanation?
Integration test (Stevenson)
integral to running of organisation or just an accessory to it ?
Last test under clear contract explanation and cases?
Economic reality test (RMC V MoP&NI)
1) work for a wage ?
2) express/implied accepts under control
3) elements inconsistent with IC contract
Who set out the 5 criteria points under ambiguous contract ?
Lord Phillips in CCWS V VCs
What are the 5 criteria points
1) E more likely to have means to compensate
2) tort is a result of activity on behalf of E
3) part of business activity
4) by employing created risk of tort
5) under control of employer
What does case of Institute of Brothers of Christian Schoold say ?
ambiguous contract covers situations of abuse by people in positions of authority
What does Cox V ministry of Justice say
ambiguous covers when D acting in a volountary capacity
Armes V Nottingham covers what ?
When local authority has sufficient control over Ds actions
What is last element of VL
In course of employment
What tests did lord Salmond provide about non-intentional torts
1)acting against orders (Rose/Twine)
2) outside employment (Beard V LGO)
3)negligently (CI V IRTB)
4)frolic of their own (Hilton V Thomas Burton)
Lister V Hesley Hall set out what test under Intentional torts?
1)relationship of employment
2) tort closely connected to employment (CCWS)
What does WM Morrison Supermarket Plc V vCs say?
intentional vengeance= not liable
What is indemnity ?
when the employer can claim back some damages off D ( Lister V Romford ICE & Cold Storage Co.)
What are the 4 criticisms
1) unfair on employers
2) too many tests to establish employee
3)unpredictable outcomes
4)hard for employee to claim back for negligent employees
What evidence is there to back up Unfair on Employers?
the employer is responsible for hiring/training/supervising e ( Limpis V LGO)
maintains a high standard (Rose V Plenty)
Explain how this is unfair to employers
unfair to blame E for actions of e
argue fair as E may benefit from negligent work
or fair as they have meant to compensate
Evaluate how this is unfair on E
Unfair to be sued for es negligent work
Give evidence to back up that there are too many tests to establish e
Clear contract tests too narrow (JGE V Trustees of Portsmouth)
more than one E can be liable for single e (Viasystems/Mersey Docks/RMC)
Explain how the evidence suggests there are too many tests
one test appropriate as E know who VL for
unfair and unpredictable
could lead to hiring of self-employed to avoid VL
Evaluate the fact there are too many tests for establishing e
one singular test would be more beneficial
give evident to back that there are unpredictable outcomes
acting outside employment & frolic of their own (CI V NIRTB/Hilton)
liable for injuries to child (Rose) but not adult (Twine)
‘closely connected’ has given too broad of circumstances (Lister)
explain how the evidence suggests the law has unpredictable outcomes
law inconsistent, case law applied differently
hard to follow for judges & lawyers
AND allow V to be compensated
Evaluate that the law allows unpredictable outcomes
decisions can be harsh and all depend on if E benefit or not even if unauthorised = unfair
Give evidence on how it is hard for E to claim back
Civil Liability Act in theory fair BUT reality unfair an unlikely to be able to get back money (Lister V Hesley Hall)
Explain how the evidence shows it is hard for E to claim back
if e imprisoned no way to claim back
Evaluate the fact it is hard for Es to claim back
unrealistic & unfair, doesn’t protect E
