Vicarious Liability [Tort Law] Flashcards
Tort Committed
First of all it must be established that a tort was committed (Lister v Hesley Hall).
The Control Test [Employee]
The first, the Control Test, says the employer must have the right to control what the individual does (Yewens v Noakes). This can include telling them what to do, how to do it and when to do it.
The Integration Test [Employee]
The next, is the Integration Test, which says, as set out in Stevenson, Jordan and Harrison Ltd v Macdonald & Evans, ‘under a contract of service, a person is employed as part of a business, and their work is done as an integral part of the business; whereas under a contract for services, their work, although done for the business, is not integrated into it but is only an accessory to it’.
If the C provides an economic benefit, then this is integral (Cox v Ministry of Justice).
The Economic Reality Test
Part 1: Wage
The first says that the employee must agree that, in return for a wage or remuneration they will provide their work or skills.
The Economic Reality Test
Part 2: Accepts Control
The second says that employee express or implied accepts that in carrying out the work, they will be subject to the control of the employer.
The Economic Reality Test
Part 3: Other Provisions
The last says that other provisions in the contract must be consistent with a contract of employment (eg. provision of tools/equipment, taxes, independence).
Authorised Act in Unauthorised Way
[During the Course of Employment]
The first says that the if the employee does an authorised act in an unauthorised way, the employer can still be liable (Rose v Plenty). However, if the employee was giving an unauthorised lift to someone, then the D cannot be liable (Twine v Beans Express).
Acting Outside Employment
[During the Course of Employment]
The second says that if the employee committed the tort whilst acting outside their employment (something not part of their job), then the D cannot be vicariously liable (Beard v London General Omnibus Company).
Criminal Act
[During the Course of Employment]
The third must be discussed [if the employee commits a criminal act]. There must be a close connection between the crime and what the employee was supposed to do (Lister v Hesley Hall), if it is done during the ‘field of employment’ there is likely to be a close connection (Mohamud v Morrison’s Supermarket).
If the act is abuse, one must consider whether the relationship between the institute and its members akin to an employer/employee relationship and whether the abuse was connected to that relationship (Various Claimants v Catholic Child Welfare Society).
Negligent Act
[During the Course of Employment]
The fourth must be considered [if the employee committed a negligent act]. Employers can still be vicariously liable if someone is injured as a result of the employee’s negligence (Century Insurance v Northern Ireland Road Transport Board).
‘Frolic of their own’
[During the Course of Employment]
Lastly, an employer will not be liable for the actions of an employee on a ‘frolic of their own’ (eg. taking unauthorised breaks or outside time/place of work) which are acts done outside of their employment at no benefit to the employer (Hilton v Thomas Burton). This will not count if the C is being payed still
What is the case for the Economic Reality Test?
Ready Mixed Concrete v Minister of Pensions
