VICARIOUS LIABILITY P1-SB Flashcards
Define Vicarious Liability
Employers being held liable for their employee’s tortious actions
Define the parties
Tortfeasor is the person who commits the tort
Defendant is the third party being held liable for the tort
Claimant is the person that suffers the harm
What is the First element of VL?
The employee must have committed a tort. Torts are usually committed unintentionally (Negligence) or sometimes they can be intentional (criminal) wrongdoings.
What is the second element of Vl?
The person needs to be an employee (or akin to) D is not liable for independent contractors they hire.
S1 OF 2E: Explain the Control Test.
The more control D has over how the T works the more likely T are an employer.
S1 OF 2E: Explain the Integration Test.
Asks is the persons job role fully integrated into the business, or is there work just an accessory to it?
S1 OF 2E: Explain the Multiple test?
The multiple test considers various factors such as payments which may indicate employment or self-employment. For example having a uniform, equipment and contract provided alongside having a set wage , reductions in National insurance and taxes and pensions taken from pay.
Explain what step two of the second element is.
If the T doesn’t have a traditional employment status the the court will consider a relationship akin to employment. This is done through looking at similar past cases.
S2 OF 2E: Give some Analogous employment examples.
Cox v Ministry of justice 2016.
- C was a prisoner who worked in the prisons kitchen.
Barclays v Multiple claimants 2020
- C 126 female parties who were sexually assaulted by T who was a doctor hired by Barclays bank.
Explain the case of MXX v A Secondary School.
FACTS: T was carrying out work placement in a school.
T sexually abused a pupil (c) who had sued the school.
OUTCOME: T was in a relationship akin to employment.
T was carrying out part of the business activity (by coaching students)
This helped to benefit the business ( T helped to develop students Sports skills)
S2 OF 2E: What are the CBC five criteria?
Will be used if the employement tests and the analogous sistuations do not apply to the situation
1. The employer is more likely to have the means to compensate C.
2. The tort will have been committed as a result of activity taken on behalf of the employer
3. The employees activity is likely to be part of the business activity of the employer.
4. The employer, by employing the employee to carry on the activity created a risk of the tort being committed.
5. The employee will, to a greater or lesser control, have been under the control.
What is the third element?
The third Element asks was the tort committed within the course of employment?
S1 OF 3E: Explain the Salmond test.
There must be a connection between the employment relationship and Ts wrong doing. D will only be liable if the tort was completed while t was carrying out Job role.
If the Tort was unintentional then the traditional Salmond test will be applied.
S1 OF 3E: Explain Employees acting against orders + Case examples.
If an employee was expressly told not to act in a certain way, yet does this anyway, the employer will still be liable as he was carrying out his work. Where the employees act also benefits the company, the employer will be liable.
CASES: Limpus v London General 1862
Rose v Plenty 1976
S1 OF 3E: Explain Employees committing a negligent act + case examples.
Where an employee does his job role in a way that is negligent, then the employer will be responsible for his actions.
CASE: Century insurance v Northern Ireland road transport board 1942
S1 OF 3E: Explain Frolic of their own + case example.
Where their employee embarks on a frolic of their own without the permission of their employer, the employer cannot be held accountable for any negligent actions.
CASE: Twine v Beans express (1946)
Hilton v Thomas burton (1961)
S2 OF 3E: What is the close connection test?
Does the Tort committed have a close connection to T’s job role/ description?
What was the nature of T’s job?
Was there a sufficient connection between the position he was employed to do and his wrongful conduct so that it is fair, just, and reasonable to impose liability on the employer?
If there is not a close connection between T’s job role and the tort then the employer is NOT liable
