Vicarious Liablity Flashcards
Introduction
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Who has legal responsibility for unlawful actions?
We’re is VL commonly seen and who is responsible?
List the parties and the definition?
VL is when - A third person has legal responsibility for the unlawful actions to another.
It’s commonly seen in the workplace where the employer is responsible for the actions of an employee who acted in the course of their employment.
The tortfeasor - the person whose commuted the tort eg employer
The claimant - the person who is affected by the actions of the tortfeasor
The defendant - the person who is responsible for the actions of the tortfeasor eg employer
Tort committed during traditional employment
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What are the 2 test?
- Was the tortfeasor an employee
- Was the tort committed during the course of the employment
- Employment statues (The Salmond Test) - Control Test
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Why does there have to be a relationship between 2 people?
What is the oldest employment test called and what case established this?
What is the principle of this test?
What actions does the master have control off?
What category of people is this test useful for and what’s the cases?
There must be a relationship between the two persons which makes it proper for the law to make one pay for the fault of the other.
The control test established in Yewens V Noakes
This is we’re the master (employer) has control over the actions of the employee
Power to select the employee, control the method of working, right to suspend or dismiss, payment of wages.
It useful for borrowed workers this is seen in the case - Mersey Docks and Harbour Board v Coggins and Griffiths Ltd held - the HOL decided that the permanent employer is liable unless it can prove otherwise.If a worker and it’s equipment are hired out there is the presumption that the original employer is liable. If only the worker is hired there is a presumption that the hirer is liable.
Hawley v Luminar Leisure Ltd held - the court decided that the club employed him as they exercised so much control over how he works therefore the club was VL.
The salmond test - The Integration Test
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Who established this test and in what case?
What does the test state?
If a persons work is accessory are they an employee?
It was established by Lord Denning in Stevenson Jordan and Harrison Ltd v McDonald and Evans.
It states that an worker will be an employee if his work is fully integrated into the business.
If the persons work is an accessory to the business that person is not an employee.
The salmond test - Economic reality test
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What case established the test?
Who is this test for?
What are the 5 factors the courts look at?
It was established in Ready Mixed Concrete Ltd v MPNI
The test is for employment or self employment.
- Ownership of equipment - an employee is less likely to own them
- Method of payment - self employed more likely to take payment for the whole job whereas Employees receives a wage instead.
- likely to be in employee if tax, national insurance or pension are deducted from the wage.
- However the person describes them self.
- The amount of independence and flexibility they have self-employed can take work from different sources and decide when to do it wears employee can not.
Independent Contractors
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How does a IC identify themself does this make them liable?
What is the case for IC
An independent contractor is self-employed and is legally responsible for their own actions and can be sued by the victim of a tort committed by him.
In April 2020 the case of Barclays Bank plc v various claimants - led to the Supreme Court reinforcing the decision that the independent contractors defence is still available. Overruling the decision of the COA to make Barclays Bank liable.
Barclays Bank plc v various claimants held -
COA 2017 - as the act was deemed to be akin to employment it was during the course of employment, and there was a close connection
SC 2020 - employer should be able to use IC defence Barclays were not liable for the actions of the doctor.
Part 2 of the Salmond Test - The Course of employment.
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In order for the employer to be liable what must happen?
What Q must the court ask?
I’n order for the employer to be liable the employee must commit the tort in the course of the employment.
The courts must Q whether or not the act was committed in the course of employment or not this is diff for each case.
- What is the definition and case of acting against orders?
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If the employee is doing there job but acts against orders in the way he does it the employer can be liable for any tort committed by the employee. The employer will be liable if they benefit from the work of the employee.
Rose v Plenty held - the dairy was VL for the workman’s negligence as the dairy was benefiting from the work done by the boy.
- What is the definition, test and case of Employee committing a negligent act?
If the employee does a job badly the employer can be liable for the employers actions that cause injury to another.
Apply: Would the Reasonable Man perform the same task
Century Insurance v Northern Ireland Road Transport Board held - The employer was liable to pay compensation as the driver was doing his job even though negligent.
- What is the definition and case of Frolic of their own?
If an employee does something outside their area of work or time of work then the employer will not be liable this will be considered as a frolic of their own.
Hilton v Thomas Burton Ltd held - The employers weee not liable to pay compensation as the workmen were on an frolic of Thor own and not acting in the course of their employment.
Smith v Stages held - The employer was liable because he was acting in the course of the employment as he was being paid during his travelling time.
Twine V Beans Express held - the employers were not liable as the driver was doing an unauthorised act and the employers were gaining no benefit from it
Beard v London Omnibus Co held - The employer was not liable as the conductor was doing something outside the course of his employment.
If a PC uses his uniform to gain trust of a V and commits a crime it will not necessarily give rise to VL (N v Chief Constable Of Merseyside Police) This can be used for frolic.
Intentional torts or a crime committed during traditional employment
What must they be between the crime and what were they employed 
to do?
What are the 5 cases?
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Courts must establish if the crime committed by the employee was closely connected to what they were employed to do
- Was the tort committed by an employee.
- What is the tort committed during the course of employment?
- What is the tort closely connected to the crime and what the employee was employed to do
Lister v Hesley Hall held the HOL held there was a close connection between his and what he was employed to do as the assaults were committed on the school premises and so the employer was VL
Mohamed v Morrisons Supermarket held - SC decided that as the employee was acting within his course of employment there was a close connection between what he did and what he was required to do in the job therefore employer was VL
Bellman v Northampton recruitment held - the court held there was sufficient connections between his role of an managing director, his field of activities and the assault between his managerial decision making continue during the party bus back at the hotel. He exercised authority throughout the night and this was a misuse of his position.
Shelbourne v Cancer Research held - the court held. There was not a sufficient connection between the Hassal and injury as his attendance was not required at the party. It was an open invite we’re the tea could choose to go, unlike the managing director in the previous case
Morrisons supermarket v various claimants held the Supreme Court considered What is a close connection and stated that any act which is an effort to deliberately harm the employer As part of a vendetta cannot be a close connection the employers actions were outside the course of employment, and so no close connection was established
Recent approaches to vicarious liability
What are the three test non-traditional working relations?
What must the courts establish for akin to employment?
What case set out the five criteria to establish akin to employment?
What are the other 2 cases?
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Applies to non-traditional working relationships
- State how the tortfeasor is not an employee.
- Is the relationship between the employer and employee akin to employment
- Is the tort closely connected to employment?
Akin to employment
The courts must establish that it’s fair, just reasonable to find a relationship akin to employment if so the employer is VL
The case of Catholic child welfare society set out five criteria to be considered when establishing if the relationship is akin to employment
- The defendant is more likely to have the resources to compensate the claimant and the primary tortfeasor.
- The tort was caused by activities done by the defendants behalf.
- The tortfeasor is likely a part of the defendants business
- The defendant created the risk of the tort by employing the primary Tortfeasor
- The defendant is likely to have some control over the primary tortfeasor
Not all factors, need to be present
Christian Brothers case held - Supreme Court held that a Catholic Institute was vicariously liable for acts, committed by the teacher, even though it was akin to employment
Cox v Ministry of Justice held - the Court of Appeal stated that the relationship between the prisoner and the prison service was similar to that of employer and employee as the prison service was benefiting from the prisons work.
