Vicarious Liability Test One Flashcards
What is vicarious liability?
Vicarious liability arises where an employer is liable for the torts and crimes of their employees.
Who first defined vicarious liability?
Vicarious liability was first defined by Sir John Salmond in 1907.
What are the two rules of vicarious liability?
The two rules are: (1) the tortfeasor must be an employee or in a position ‘akin to employment’, and (2) the action must have occurred during the course of employment or there must be a close or sufficient connection between the wrongdoing and employment.
What is the claimant referred to in vicarious liability?
In vicarious liability, C (name) is the claimant who has suffered harm.
Who is the employer in the context of vicarious liability?
D (name) is the employer who may be vicariously liable on behalf of TF (name), the employee, who is the tortfeasor.
What is the Salmond Approach?
Under the Salmond Approach, the tortfeasor must have been an employee.
What tests are used to determine if someone is an employee?
The court will use the control test, the integration test, or the economic reality (multiple) test.
What is the ‘akin to employment test’?
The ‘akin to employment test’ is used where there is doubt about the employment status of the tortfeasor.
What criteria did Lord Phillips state in The Christian Brothers Case?
The five criteria are: (1) the employer is more likely to compensate the victim, (2) the employee was under the control of the employer, (3) the employee’s activity was part of the employer’s business, (4) the activity was undertaken on behalf of the employer, and (5) the risk was created by the employer.
What case confirmed the test in The Christian Brothers Case?
The test was confirmed in Cox v Ministry of Justice and Barclays Bank v Various Claimants.
What is an example of someone not in a position akin to employment?
An example is bailiffs, as in Kalfagi v JBW Group, who can refuse work and must take out their own insurance.
How can TF be considered an employee?
TF is likely to be considered an employee if they ‘worked’ for D, are paid a regular salary, their work is integrated, and D controls their work.
What if it is unclear whether TF is an employee?
TF may be considered ‘akin to employment’ if the five criteria are satisfied.
What is the liability of employers for the torts of independent contractors?
Employers are not vicariously liable for the torts of independent contractors, as confirmed in Barclays Bank v Various Claimants.
What defines an independent contractor?
An independent contractor is not an employee and is liable for their own actions.
What is an example of independent contractor liability?
If D is a builder who employed TF as an independent contractor electrician, then TF alone as the tortfeasor will be liable for C’s injuries when the wiring caught fire.
Can responsibility for an employee’s actions be shared?
Yes, responsibility for the actions of an employee can be shared by more than one employer, as in Viasystems v Thermal Transfer.
What is an example of shared responsibility between employers?
If TF was arguably employed by both D and Z, then D and Z will share responsibility jointly for C’s claim.
What are the two tests to determine if TF is an employee?
- Ask if TF fits into the ‘employment’ tests. 2. Determine if the relationship between TF and D is ‘akin’ to employment.
What is the first step in the employment test?
Ask ‘does TF fit into the ‘employment’ tests’? If yes, they are an employee; if no, go to the ‘akin’ test.
What is the second step in the employment test?
Determine if the relationship between TF and D is ‘akin’ to employment. If yes, test 1 is satisfied; if no, test 1 is not satisfied.
