vicarious liability template - topic 15 Flashcards
- Vicarious liability is a form of….
Strict liability. This means that an employer remains liable for for actions of his employee even though he is not at fault.
- Employers are vicariously liable for…
The torts of their employees that are carried out during the course of their employment.
- ………… may be liable for…
The tort of ………. carried out by ……..
- There are two main tests required to prove vicarious liability:
Was the person alleged to have committed the tort of an employee? And
Did the employee commit the alleged tort during the course of their employment?
- In regards to whether ….. is an employee the test to decide on employability status has…..
necessarily changed dramatically over the decades and arguably it is still changing as people work in different ways. The courts now look at all the facts of the case to establish whether someone is an employee, Barclays v various claimants. In this case a GP was hired by the bank to carry out medical assessments of employees was held not to be an employee or anything close to an employee by The Supreme Court. However in a previous case, Cox v Ministry of Defence prisoners were held to be employees of the prison partially by reference to the criteria laid out in Catholic Welfare Trust v various claimants. The key to the employee test is the relationship between the tortfeasor and the employer - is a relationship akin to employment?
APPLY: state why it’s clear/ unclear why the person is/ isn’t an employee of the business.
ONLY WRITE IF NECESSARY:
6. Ready Mix Concrete v Minister of Pensions case established…
The test to see whether a person is an employee as follows: is the work provided in consideration for a wage? Is the employee under the employers control? and are other terms of the agreement consistent with having a contract of employment, holiday and sick pay etc?
- This test has been updated so…
Other factors in the relationship may be considered:
Does ‘the employee’ own their own tools/ equipment? If so less likely to be an employee.
How are they paid? Regular instalments means that you are more likely to be an employee, end of job - self employed.
Are tax, national insurance etc been deducted from employee’s money? If yes more likely to be employed if not and are filling in self assessment then it is more likely to be self employed.
How much flexibility is involved in the job? The more flexibility the more likely you are to be self employed.
- In Barclays v various claimants it was held that….
The give criteria didn’t have to be applied if the tortfeasor was clearly not an employee. The Supreme Court said this was the case because he was a part time employee of the health service. The fact that the Bank sent him the forms to complete and made arrangements for the examinations wasn’t sufficient to establish a relationship akin to employment. Dr Bates wasn’t paid a retainer. He had the ability to refuse an offered examination, had his own medical liability insurance and carried out a business on his own account. The Bank was one of his clients. The Supreme Court didn’t need to apply a detailed analysis of the five criteria but reached a view on the fact that Dr Bates was clearly an independent contractor.
- The next question that needs to be answered is….
Was the tortfeasor …… acting in the course of his/ her employment?
- In the case of Hilton v Thomas Burton the question that was posed was….
‘Was the tortfeasor acting in the course of his employment or rather was he on a frolic of his own?’
- In Lister v Hall the close connections test was established…
Was there a close connection between the crime/ tort and what the employee had been employed to do?
This was recently reviewed in the case of Mohammad v Morrisons. In this case they also focused on how closely connected the employees actions were to their employment and decided an employee who criminally assaulted a customer was working in the course of their employment.
- However in another recent case also concerning Morrisons….
Morrisons Supermarket v various claimants this test was clarified further. A senior auditor working for Morrisons published employees’ personal data on the internet. It was held although his position in Morrisons had facilitated this action in couldn’t be held to be within his field of expected activities and it wasn’t held to be closely connected enough for Morrisons to be liable for his action.
APPLY: was the tortfeasor acting in the course of their employment or on a frolic of their own?
What act allows an employer to go on and sue their employee?
Civil Liability Act 1978.
what are the two types of workers?
Employees and independent contractors.
Can more than one employer be vicariously liable?
Yes, Vivasystems LTD v Thermal Transfer.
Can an employer be liable if the employee was carrying out an act on the instructions of the employer?
Yes even if the employee carrying out duties in an unauthorised manner, Century Insurance v Northern Ireland Road Transport Board
An unauthorised act using an expressly forbidden method
Employer still liable for an act carried out by his employee where the authorised act has been carried out in a manner that the employer has expressly forbidden, Limpus v London General Omnibus.
Is the employer liable if the employee’s act is unauthorised and therefore not part of the job?
No, Beard v London General Omnibus.
What issues arise when looking at Road Traffic Accidents?
- Giving a lift to an unauthorised person.
- Making a detour.
Rose v Plenty
Milkman took a 13 year old to help him on his round and the boy was injured by the milkman’s negligent driving.
Dairy was vicariously liable.
Criminal offences
If employee’s tort is also a criminal offence employer still vicariously liable if he authorised acts express or impliedly.
