Vicarious Liability (intentional) Flashcards
What is the vicarious liability AO1 divided into?
-Intro
-Employment relationship
-Close connection
-Defences
-Remedies
What is included in AO1 intro?
The test for Vicarious Liability - intentional torts - Barclays (2020)
To find the employer vicariously liable. It must be satisfied that:
1. There is an employment relationship between the tortfeasor and the employer
2. There must be a connection between employment and the tortfeasor’s wrongdoing
What is included in AO1 Employment relationship (simplified)
-Must be a relationship of employment between tortfeasor and D
-If courts can’t find a relationship of employment they will try to establish a relationship that is akin to employment
-(CBC case 5 elements)
Cox V MOJ
-If there is no relationship of employment there will be no liability, TF considered an independent contractor (Barclays 2020)
What is the 5 elements of the CBC case? (People, Buy, Baubles, Round, Christmas)
-Is the defendant in better position to Pay damages
-The tort was committed when the tortfeasor was acting on behalf of the D
-The tortfeasors activity is integrated into the D’s business
-The D by employing the tortfeasor to carry out the activity will have created a risk that a tort be committed
-The tortfeasor is under the control of the D
What is said in Cox v MOJ?
-The Court stated that when applying the CBC tests it is parts 2,3,4 of it that are most relevant and have been most emphasized by the courts
What are the 2 parts of close connection in AO1?
-It must be established that there is a close connection between the tortfeasors wrongful actions and their employment - Morrisons (2020)
-There is no liability if the tort feasor was acting on a personal vendetta (Morrisons 2020)
What are the two defences in AO1?
-Volenti
-Contributory negligence
What are the two points in remedies AO1?
-Compensatory damages to the claimant
-(Civil Liability (Contribution) Act 1978 the employer can recover any of the compensation paid out from the employee, for example it can be deducted from their wages
What are the 5 elements of Application?
-Parties involved
-Is the tortfeasor an employee
-Close connection
-Defences
-Remedies
What are the three sections of Parties involved in AO2?
The D is… why?
The tortfeasor is … why?
The C is … why?
What is the “is the tortfeasor an employee” AO2 made up of?
-Here there is/isn’t a contractual relationship of employment because…
-Here the relationship is/isn’t akin to a relationship of employment because…
-CBC 5 part test
-If not, say the person who committed the tort is an independent contractor and not an employee and therefore the D will not be liable
What is in the Close connection section of AO2?
-The tort that was committed was…
-The tort could be considered as… (name crime)
-Here the tort is or isn’t connected to the D’s employment because…
-Personal vendetta if it applies
How is personal vendetta applied in “close connection” section of ao2 (if necessary)?
-Here the tortfeasor was acting out of a personal vendetta because…
-This would not be considered as closely connected to the acts of employment
How is defences used in AO2 application
Contributory negligence - How did the C contribute to their own injuries, state this would reduce damages awarded
-Volenti:
-The consented to the risk because…
-Did the C have precise knowledge of the risk…
-Did the C exercise free will to carry out the activity…
-Did the C voluntarily accept the risk…
How is remedies used in AO2 application?
-If successful the C would receive compensatory damages
-The employer would claim the compensation back from the tortfeasor
