Vicarious Liability - Finish Catholic Child, Close Connection And Conduct Contray Flashcards
Cox v Ministry of Justice
5 justifications for vicarious liability
1.deep pockets = rule in tort to sue person with deepest pockets, employer more likely to the means to compensate the victim than employee and is expected to have insurance against liability
2.control over employee = employer tends to have greater degree of control over the employer
3.employee’s activity is the deemed to be part of the employers activity and employer authorized employees activity
4.employer by employing the employee to carry that activity created the risk of the tort committed by the employee
5.Employer gains the benefit from employees to carry that activity created the risk of the tort committed by the employee
Yemens v Noakes
Defines rationale Control Test
“A person is subject to the command of the masters control”
Cassidy v Ministry of Health (1951)
Control test
Employed doctor treating patient - doctors employer is not liable because he controls how the doctor does his work but because he chosen the doctor to do the task and has the ultimate sanction for good conduct or power of dismall
Morren v swinton (1965)
Control test
If they have POWER OF DISMALL and pay NATIONAL INSURNACE - employer has control over employee
E v English Province (2012)
Control test
Control should be viewed in the context of whether his employee is accountable to his superior in a way that he supervised and make improvements on his work
Stevenson Jordan and Harrison v McDonald
Intergration test
To be an employee work must be an integral part of the business, not merely an accessory
Ferguson v John Dawson and partners
Parties own classification
DOES NOT MATTER in determine whether an employee
“Declaration of parties ought to be wholly disregarded”
Ready Mixed Concrete Test
Multiple test
3 factors
A contract of services exist if…
1.employee and employer make agreement of remuneration for work
2.employee agrees to be subject to control in exchange for performance
3.other provisions of a contract are consistent with one of service
Market Investigations Case
Multiple test
(Use ready mixed concrete basis plus additional factors)
1.does employee provide own equipment
2.what degree of financial risk for services
3.what degree of responsibility for investment and management
4.whetehr he hires his own workers
5.wther he has an opportunity to be profit from the sound management of the performance of his task
Barclays Bank
Issue: was Dr bates liable for assault of patients while working for Barclays Bank
Facts:
• Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the Bank.
• He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so.
• He carried his own medical liability insurance.
• He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the Bank.
-Dr bates employd to make sure clients were healthy and if not would provide cure
-Dr bates could accept and reject at his discretion
-When he accepted these claims he abused and assaulted many employees while conducting medical review
-Claimanst want compensation
-Rule of tort is to sue the bank/sue the one with the deepest pocket
Outcome: Dr bates not liable - considered nature of relationship- Barclays had very limited degree of control over bates
Mersey Docks v Covina (1947)
Temporary secondary or agency workers
1.terms of actual or parties contract does not matter
2.evidential presumption is that the permanent employer is not liable not temporary worker!
(This may be rebutted based on facts!!!)
(May be dual liability)
