Vicarious Liability EVALUATION Flashcards
Explain
Vicarious liability is where D is held liable for a tort they did not commit due to their relationship with a tortfeasor (T). First, it must be shown that T was employed by D. The Economic Reality test, set out in Ready Mixed Concrete v Min of Pensions, said that there
were multiple factors to be considered such as if they receive a regular wage, if they control their own hours, and if they own the equipment. Where an employee is loaned out, Mersey Docks and Harbour Board v Coggins and Griffith shows there is a presumption the permanent employer is liable, but Hawley v Luminar Leisure shows the second employer
can be liable if they have enough control over T. Cox v MoJ said that even relationships without formal contracts of employment may lead to VL if T’s work is fully integrated into D’s
business, and D created a risk of harm by giving T that work. Barclays Bank said to consider all details of the relationship, but where it was unclear if T was an independent
contractor, the test from Cox was useful. Next, T must have been in the course of employment when committing the tort. Course of employment can mean one of two things;
the wrongful act was authorized by the employer, or the wrongful act was unauthorised, but the act was closely connected to their authorised work. Morrisons 2020 shows we should consider what T was employed to do, what they did in the case, and if these things had a close enough connection that it was fair to say T was acting in the ordinary course of employment, or if it was instead a personal action. The crime was connected to employment in the Mohamud case because the argument was about work, whereas the motivation was purely personal in N v CC of Merseyside. In Twine v Beans Express the unauthorised act was a frolic of his own as T was not doing his job when giving the lift, but in Rose v Plenty the job was still being done and the company benefited from the act. A claim against T for the damages paid under the Civil Liability(Contribution) Act 1978
Barclay’s Bank is a broad test
arclay’s Bank shows deciding if someone has a relationship similar enough to employment should look at all details and is a very broad test. This is positive because it creates flexibility and means the courts can ensure fairness is achieved when a more rigid test may deny compensation to deserving claimants (e.g. in the Cox case). However, having such a broad test makes it hard to know when exactly a claim of VL is likely to succeed. This makes the law very uncertain, and is why so many cases have been appealed all the way to the Supreme Court in recent years. Consequently, it may be hard to know if the law is fairly apportioning blame
Claimant will be compensated
Vicarious liability increases the odds that the claimant will be compensated. This is fair
because the company benefit from their employee’s work; have more money to pay; and can get insurance. Therefore providing compensation for their employee’s wrongdoing may be fair, when the alternative is C being forced to sue someone (T) who has no money. On the other hand, this can be unfair if a company has taken all reasonable steps to select and train their employees properly, as they will still be liable despite not doing anything wrong themselves. Therefore this may not be an effective deterrent, nor apportioning of blame
Encourage higher standards
The fact that D can be liable for the negligence of its employees should encourage higher
standards and deter poor expectations. This is positive as employers will take extra care to
make sure their employees do not carry out their roles in dangerous ways, which should make safety standards higher. However, in the modern age many employees work from
home or travel, making it hard for employers to effectively control their employee’s behaviour anyway; and even expressly forbidden acts can still lead to liability (e.g. Rose v Plenty). Therefore this may not really be an effective deterrent, nor fair, in the modern age
Reclaim in damages
The Civil Liability (Contribution) Act 1978 allows employers to reclaim damages paid to a
claimant from their employee. This could be positive in cases where employers have been
very careful and did not truly deserve to be sued and lose their money. However, it goes
against the very reasons that VL exists: that the employee probably does not have enough
money to pay (especially if their actions were criminal and so they are now in prison with no
income). Consequently, it is hard to say VL is a fair deterrent that accurately apportions
blame when the consequences can be heavily mitigated by this Act
