Vicarious Liability - Tort Law

Question 1

What is Vicarious Liability?

Answer 1

When the law makes one person liable for the tort of another.

Question 2

Vicarious Liability is a form of strict liability, what is meant by this?

Answer 2

No need to prove fault to be liable, an employer remains liable for torts of his employees even if he himself may not be at fault in any way.

Question 3

How can employer recover compensation they paid out for employees tort?

Answer 3

Sue employee under the Civil Liability (Contributions) Act 1978

Question 4

In order to establish vicarious liability, what must be proved?

Answer 4

1. Worker has committed a tort
2. The tortfeasor is an employee
3. The tort was committed in the course of their employment

Question 5

1: Employee has committed a tort: what does this mean?

Answer 5

C must show existence of the elements of whichever tort is alleged, e.g. negligence, OLA 57/84

Question 6

2: Tortfeasor is an employee: what test is used to classify a worker?

Answer 6

Multiple test - employer or independent contractor

Question 7

3: The tort was committed in the course of their employment - what does this mean?

Answer 7

The tortfeasor must be “doing their job” when the tort occured

Question 8

What 6 factors are taken into account under the multiple test?

Answer 8

Payments, tax, type of contract, equipment & premises, illness, delegation - worker doesn’t need to meet all criteria, calculated on balance of probabilities

Question 9

How does payment differ for an employee and IC?

Answer 9

Employee - regular paid salary
IC - paid commission

Question 10

How does tax differ for an employee and IC?

Answer 10

Employee - deducted from salary
IC - self-assessment tax return

Question 11

How does equipment and premises differ for an employee and IC?

Answer 11

Employee - provided by employer
IC - provides their own kit

Question 12

How does illness differ for an employee and IC?

Answer 12

Employee - does not need to find replacement
IC - must find their own replacement

Question 13

How does delegation differ for an employee and IC?

Answer 13

Employee - cannot delegate without permission
IC - can delegate work

Question 14

Ready mixed concrete v minister of pensions

Answer 14

Drivers - IC as they owned & maintained their own vehicles, were free to hire other drivers to complete work & weren’t guaranteed income

Question 15

Carmichael v national power

Answer 15

Tour guides - IC as a lack of mutuality of obligation meant the workers were not employees, D was obligated to provided work but didn’t have to take it

Question 16

Where multiple test doesn’t apply, what test would we use?

Answer 16

Sufficiently “akin” test

Question 17

What case established the “sufficiently akin” test?

Answer 17

E v English Province of Our Lady of Charity

Question 18

What are the three stages of the sufficiently akin test?

Answer 18

1. A relationship “akin to employment” between the Tortfeasor and the Employer
2. Must be a “close connection” between this relationship and tort committed
3. It is fair,just & reasonable to impose liability to D

Question 19

JGE v Portsmouth RC Diocesan Trust

Answer 19

Priests relationship with the church was sufficiently akin to one of employment, therefore was fair and just to hold church VL

Question 20

Various Claimants v Catholic Child Welfare Society

Answer 20

Relationship between organisation and its member was sufficiently akin to one of employer/employee and was a close connection between that relationship & the sexual abuse committed by brothers when teaching in the school

Question 21

Mohamud v Morrison Supermarket plc

Answer 21

The worker was acting within field of employment - at work & during work hours - so sufficiently close connection between what he did and his job

Question 22

Cox v Ministry of Justice

Answer 22

Relationship between prisoner and prison service was similar to employer/employee.

Question 23

Barclays Bank v Multiple Claimants

Answer 23

Relationship between the bank and the doctor was akin to an IC and therefore were not responsible

Question 24

3: Tort was committed during course of employment: What is meant by acting against orders?

Answer 24

If employee is doing their job but acts against orders in the way in which they do it, employer can still be VL for him.

Question 25

Limpus v London Omnibus

Answer 25

As long as employee is doing their job - even in a way that goes against orders - employer will be VL

Question 26

Rose v Plenty

Answer 26

As long as employee is doing their job - even in a way that goes against orders - employer will be VL

Question 27

Beard v London Omnibus

Answer 27

If an employee does something outside the course of their employment, the employer will not be VL for any torts committed

Question 28

3: Tort was committed during course of employment: what is meant by employee committing a crime?

Answer 28

If employee commits a crime during his work, the employer may still be VL for the employees act if there is a close connection between crime & what employee is employed to do

Question 29

Lister v Hesley Hall Ltd

Answer 29

If employee commits crime during his work, the employer may still be VL to the victim of the crime if there is a close relationship between crime and what employee is employed to do

Question 30

Mattis v Pollock

Answer 30

Employees acts were so closely connected with their employment that it was fair and just to hold employer liable

Question 31

3: Tort was committed during course of employment: what is meant by employee committing a negligent act?

Answer 31

Where the employee is doing their job - but does it badly - the employer will still be VL for the Employee’s actions if these cause injury to another employee

Question 32

Century Insurance v NI Road Transport Board

Answer 32

Principle of VL should encourage employers to take greater care when selecting their employees and to provide suitable training and supervision

Question 33

3: Tort was committed during course of employment: what is meant by employee acting on a “frolic of their own”?

Answer 33

If employee caused an injury or damage whilst doing something outside the area of their work then the employer will not be liable

Question 34

Storey v Ashton

Answer 34

Employee was not “in the course of their employment” as it was a detour, outside of business hours, on a weekend, so employer was not VL

Question 35

Hemphill v Williams

Answer 35

Although on a detour, the driver was still acting “on course of his employment” so his employer was VL

Question 36

What are the remedies?

Answer 36

Damages payable to C - Employee primarily liable but Employer pays compensation

Question 37

If employer pays compensation, how do they recover it?

Answer 37

Though Civil Liability (Contribution) Act - Employer can recover compensation back from employee by a deduction from his wages

Question 38

Armes v Nottinghamshire County Council

Answer 38

Local authority/foster carer relationship was “sufficiently akin” to one of employment, Tort was connected to the abuse & it was fair, just & reasonable to impose a DoC

Question 39

Woodland v Essex County Council

Answer 39

Employers can be held VL if the IC where the Employer’s duty cannot be delegated