vicarious liability- tort Flashcards
what is VL?
. where 1 person is responsible for the tort of another
benefit for C?
. allows C to sue the employee + employer + discover which is better placed to pay the conpensation
- may be because 1 of the parties is more likely to be in a better financial position or insured
why justified?
. without VL, an injured C will be left without compensation
. justified because employer employs, trains + supervises employee
why unjustified?
. holds employer responsible for actions of another- often someone they have no day to day dealings with- eg. big companies like tesco
3 people?
. tortfeasor- person who commits tort + causes harm (employee)
. claimant- victim who suffers harm
. defendant- person liable for the tort (usually employer)
old test for VL was to establish:
- is the tortfeasor an employee?
- was the tort committed in the course of employment?
old test- why do we need to prove that the tortfeasor is an employee?
. employers will only be liable for their employees, but not for independent contractors (self employed)
. employee usually has a contract of service- eg. teacher
. independent contractor would have a contract for service- eg. cover teacher ( provide work for business but does not work directly for the business)
old test- how do we work out whether a person is an employee?
. under the traditional approach, the courts developed 3 tests to determine whether a tortfeasor is an employee:
1. the control test
2. the integration or organisation test
3. the economic reality or multiple test
the control test
. Lord Thankerton identified key features that would show that the employer had some control over the employee:
1. the power to select the employee
2. the right to control the method of working
3. the right to suspend and dismiss
4. the payment of wages
. test only now useful for borrowed workers
. more control over them = more likely to be employee
control test- Mersey Docks and Harviur Board v Griffiths 1947
. crane driver hired by his employers (Harbour Board)
. injured person negligently during work
. employers set out contract- stated he was employee of Coggins but Harbour Board still paid his wages + kept power to sack him
. terms of any hire contract are not decisive + the permanent employer is presumed liable
> original employer was liable
control test- Hawley v Luminar Leisure 2006
. bouncer supplied to nightclubs by firm
.bouncer assaulted a customer outside Ds club
. suppliers went into liquidation> C sued club
. decided the club exercise so much control over him that they employed him
